United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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An employer who investigates an individual's character by calling other local employers to see if the person is a troublemaker is acting against public policy and in violation of 41 CFR 60- 741.51. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, slip op. at 15, rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Title VII standard of proof of retaliation is applicable to cases decided under the Rehabilitation Act. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

To establish a prima facie claim of retaliation the plaintiff must show: (1) that the complainant engaged in an activity protected by the Act; (2) that the defendant acted in a manner which adversely affected the complainant; and (3) that a casual connection existed between the claimant's protected activity and the defendant's adverse employment action. Id. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to show a legitimate reason for the alleged retaliatory action. Id. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

If the defendant rebuts a prima facie claim of retaliation, the plaintiff must establish by a preponderance of the evidence that the defendant's alleged justification is actually a pretext for a retaliatory motive. The plaintiff must show that but for the complainant's refusal to relinquish his rights under the Act, the defendant would not have terminated the complainant's employment. Id. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.