Return to Home PageThe U.S. Equal Employment Opportunity Commission
EEOC DIRECTIVES TRANSMITTAL
Number 915.003
Date 5/20/98
SUBJECT: EEOC COMPLIANCE MANUAL
PURPOSE: This transmittal covers the issuance of Section 8 of the
new Compliance Manual on "Retaliation". The section
provides guidance and instructions for investigating and
analyzing claims of retaliation under the statutes
enforced by the EEOC.
EFFECTIVE
DATE: Upon receipt
DISTRIBUTION: EEOC Compliance Manual holders
OBSOLETE
DATA: Section 614 of Compliance Manual, Volume 2
FILING
INSTRUCTIONS: This is the first section issued as part of the new
Compliance Manual. Section 614 of the existing Compliance
Manual should be discarded.
/s/
---------------------------
Paul M. Igasaki
Chairman
SECTION 8: RETALIATION
TABLE OF CONTENTS
(Note: Page numbering applies only to printed version as distributed by
EEOC, or to PDF version as available on the EEOC web site,
http://www.eeoc.gov/.)
CHARGE-PROCESSING OUTLINE...........................................iii
8-I. INTRODUCTION..................................................8-1
A. OVERVIEW ...............................................8-1
B. BASIS FOR FILING A CHARGE...............................8-2
8-II. ELEMENTS OF A RETALIATION CLAIM...............................8-3
A. OVERVIEW ...............................................8-3
B. PROTECTED ACTIVITY: OPPOSITION.........................8-3
1. Definition........................................8-3
2. Examples of Opposition............................8-4
3. Standards Governing Application of the Opposition
Clause............................................8-7
a. Manner of Opposition Must Be Reasonable ..8-7
b. Opposition Need Only Be Based on Reasonable
and Good Faith Belief ....................8-8
c. Person Claiming Retaliation Need Not Be the
Person Who Engaged in Opposition .........8-9
d. Practices Opposed Need Not Have Been Engaged
in by the Named Respondent ...............8-9
C. PROTECTED ACTIVITY: PARTICIPATION .....................8-9
1. Definition........................................8-9
2. Participation Is Protected Regardless of Whether
the Allegations in the Original Charge Were Valid
or Reasonable ....................................8-9
3. Person Claiming Retaliation Need Not Be the Person
Who Engaged in Participation.....................8-10
4. The Practices Challenged in Prior or Pending
Statutory Proceedings Need Not Have Been Engaged
in by the Named Respondent ......................8-10
D. ADVERSE ACTION ........................................8-11
1. General Types of Adverse Actions.................8-11
2. Adverse Actions Can Occur After the Employment
Relationship Between the Charging Party and
Respondent Has Ended.............................8-12
3. Adverse Actions Need Not Qualify as "Ultimate
Employment Action" or Materially Affect the Terms
or Conditions of Employment to Constitute
Retaliation .....................................8-13
E. PROOF OF CAUSAL CONNECTION ............................8-15
1. Direct Evidence .................................8-16
2. Circumstantial Evidence .........................8-17
8-III. SPECIAL REMEDIES ISSUES ...............................8-20
A. TEMPORARY OR PRELIMINARY RELIEF........................8-20
B. COMPENSATORY AND PUNITIVE DAMAGES......................8-21
1. Availability of Damages for Retaliation Under ADEA
and EPA .........................................8-21
2. Appropriateness of Punitive Damages .............8-21
CHARGE-PROCESSING OUTLINE
In processing a charge involving an allegation of retaliation,
consider the following issues (for a detailed discussion of each
issue, see accompanying chapter at referenced pages):
There are three essential elements of a retaliation claim:
1) protected activity -- opposition to discrimination or participation
in the statutory complaint process
2) adverse action
3) causal connection between the protected activity and the adverse
action
I. Protected Activity
A. Did CP oppose discrimination? .....................3
1. Did the charging party (CP) explicitly or
implicitly communicate to the respondent (R) or
another covered entity a belief that its activity
constituted unlawful discrimination under Title
VII, the ADA, the ADEA, or the EPA?
- If the protest was broad or ambiguous, would
CP's protest reasonably have been interpreted
as opposition to such unlawful discrimination?
Did someone closely associated with CP oppose
discrimination?
2. Was the manner of opposition reasonable? Was the
manner of opposition so disruptive that it
significantly interfered with R's legitimate
business concerns?
- If the manner of opposition was not
reasonable, CP is not protected under the
anti-retaliation clauses.
3. Did CP have a reasonable and good faith belief that
the opposed practice violated the anti-
discrimination laws?
- If so, CP is protected against retaliation,
even if s/he was mistaken about the
unlawfulness of the challenged practices.
- If not, CP is not protected under the anti-
retaliation clauses.
B. Did CP participate in the statutory complaint process?... 9
Did CP or someone closely associated with CP file a
charge, or testify, assist, or participate in any manner
in an investigation, proceeding, hearing, or lawsuit
under the statutes enforced by the EEOC?
- If so, CP is protected against retaliation
regardless of the validity or reasonableness of the
original allegation of discrimination.
- CP is protected against retaliation by a respondent
for participating in statutory complaint
proceedings even if that complaint involved a
different covered entity.
II. Adverse Action
Did R subject CP to any kind of adverse treatment? ..... 11
- Adverse actions undertaken after CP's employment
relationship with R ended, such as negative job
references, can be challenged.
- Although trivial annoyances are not actionable,
more significant retaliatory treatment that is
reasonably likely to deter protected activity is
unlawful. There is no requirement that the adverse
action materially affect the terms, conditions, or
privileges of employment.
III. Causal Connection
A. Is there direct evidence that retaliation was a motive
for the adverse action? .......................... 15
1. Did R official admit that it undertook the adverse
action because of the protected activity?
2. Did R official express bias against CP based on the
protected activity? If so, is there evidence
linking that statement of bias to the adverse
action?
- Such a link would be established if, for
example, the statement was made by the
decision-maker at the time of the challenged
action.
If there is direct evidence that retaliation was a motive
for the adverse action, "cause" should be found. Evidence
as to any additional legitimate motive would be relevant
only to relief, under a mixed-motives analysis.
B. Is there circumstantial evidence that retaliation was the
true reason for the adverse action? ...............16
1. Is there evidence raising an inference that
retaliation was the cause of the adverse action?
- Such an inference is raised if the adverse
action took place shortly after the protected
activity and if the decision-maker was aware
of the protected activity before undertaking
the adverse action.
- If there was a long period of time between the
protected activity and the adverse action,
determine whether there is other evidence
raising an inference that the cause of the
adverse action was retaliation.
2. Has R produced evidence of a legitimate,
nondiscriminatory reason for the adverse action?
3. Is R's explanation a pretext designed to hide
retaliation?
- Did R treat similarly situated employees who
did not engage in protected activity
differently from CP?
- Did R subject CP to heightened scrutiny after
s/he engaged in protected activity?
If, on the basis of all of the evidence, the investigator
is persuaded that retaliation was the true reason for the
adverse action, then "cause" should be found.
IV. Special Remedies Issues
A. Is it appropriate to seek temporary or preliminary relief
pending final disposition of the charge?.............19
1. Is there a substantial likelihood that the
challenged action will be found to constitute
unlawful retaliation?
2. Will the retaliation cause irreparable harm to CP
and/or the EEOC?
- Will CP likely incur irreparable harm beyond
financial hardship because of the retaliation?
- If the retaliation appears to be based on CP's
filing of a prior EEOC charge, will that
retaliation likely cause irreparable harm to
EEOC's ability to investigate CP's original
charge of discrimination?
If there is a substantial likelihood that the challenged
action will constitute retaliation and if that
retaliation will cause irreparable harm to CP and/or the
EEOC, contact the Regional Attorney about pursuing
temporary or preliminary relief.
B. Are compensatory and punitive damages available and
appropriate?........................................ 20
Compensatory and punitive damages are available for
retaliation claims under all of the statutes enforced by
the EEOC, including the ADEA and the EPA. Compensatory
and punitive damages for retaliation claims under the
ADEA and the EPA are not subject to statutory caps.
Punitive damages often are appropriate in retaliation
claims under any of the statutes enforced by the EEOC.
8-I INTRODUCTION
A. OVERVIEW
Title VII of the Civil Rights Act of 1964\1, the Age Discrimination
in Employment Act\2, the Americans with Disabilities Act\3, and the Equal
Pay Act\4 prohibit retaliation by an employer, employment agency, or labor
organization because an individual has engaged in protected activity.
Protected activity consists of the following:
----------------------------
PROTECTED ACTIVITY
(1) opposing a practice made unlawful by one of the employment
discrimination statutes (the "opposition" clause); or
(2) filing a charge, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing under
the applicable statute (the "participation" clause).
----------------------------
This chapter reaffirms the Commission's policy of ensuring that
individuals who oppose unlawful employment discrimination, participate in
employment discrimination proceedings, or otherwise assert their rights
under the laws enforced by the Commission are protected against
retaliation. Voluntary compliance with and effective enforcement of the
anti-discrimination statutes depend in large part on the initiative of
individuals to oppose employment practices that they reasonably believe to
be unlawful, and to file charges of discrimination. If retaliation for
such activities were permitted to go unremedied, it would have a chilling
effect upon the willingness of individuals to speak out against employment
discrimination or to participate in the EEOC's administrative process or
other employment discrimination proceedings.
The Commission can sue for temporary or preliminary relief before
completing its processing of a retaliation charge if the charging party or
the Commission will likely suffer irreparable harm because of the
retaliation. The investigator should contact the Regional Attorney early
in the investigation if it appears that it may be appropriate to seek such
relief. See Section 8-III A. for guidance on the standards for seeking
temporary or preliminary relief.
B. BASIS FOR FILING A CHARGE
A charging party who alleges retaliation under Title VII, the ADA,
the ADEA, or the EPA need not also allege that he was treated differently
because of race, religion, sex, national origin, age, or disability\6. A
charging party who alleges retaliation in violation of the ADA need not be
a qualified individual with a disability\7. Similarly, a charging party
who alleges retaliation for protesting discrimination against persons in
the protected age group need not be in the protected age group in order to
bring an ADEA claim.\8
A charging party can challenge retaliation by a respondent even if
the retaliation occurred after their employment relationship ended\9.
S/he can also challenge retaliation by a respondent based on his/her
protected activity involving a different employer, or based on protected
activity by someone closely related to or associated with the charging
party.\10
A charging party can bring an ADA retaliation claim against an
individual supervisor, as well as an employer. This is because Section
503(a) of the ADA makes it unlawful for a "person" to retaliate against an
individual for engaging in protected activity.\11
8-II. ELEMENTS OF A RETALIATION CLAIM
A. OVERVIEW
There are three essential elements of a retaliation claim:
----------------------------
ELEMENTS OF RETALIATION
1) opposition to discrimination or participation in covered
proceedings
2) adverse action
3) causal connection between the protected activity and the
adverse action
----------------------------
B. PROTECTED ACTIVITY: OPPOSITION
1. Definition
The anti-retaliation provisions make it unlawful to discriminate
against an individual because s/he has opposed any practice made unlawful
under the employment discrimination statutes\12. This protection applies
if an individual explicitly or implicitly communicates to his or her
employer or other covered entity a belief that its activity constitutes a
form of employment discrimination that is covered by any of the statutes
enforced by the EEOC.
While Title VII and the ADEA prohibit retaliation based on
opposition to a practice made unlawful by those statutes, the ADA
prohibits retaliation based on opposition to "any act or practice made
unlawful by this chapter." The referenced chapter prohibits not only
disability-based employment discrimination, but also disability
discrimination in state and local government services, public
accommodations, commercial facilities, and telecommunications. Thus, the
ADA prohibits retaliation for opposing not just allegedly discriminatory
employment practices but also practices made unlawful by the other titles
of the statute.
2. Examples of Opposition
* Threatening to file a charge or other formal complaint
alleging discrimination
Threatening to file a complaint with the Commission, a state
fair employment practices agency, union, court, or any other
entity that receives complaints relating to discrimination is
a form of opposition.
----------------------------
Example - CP tells her manager that if he fails to raise
her salary to that of a male coworker who performs the
same job, she will file a lawsuit under either the federal
Equal Pay Act or under her state's parallel law. This
statement constitutes "opposition."
----------------------------
* Complaining to anyone about alleged discrimination against
oneself or others
A complaint or protest about alleged employment discrimination
to a manager, union official, co-worker, company EEO official,
attorney, newspaper reporter, Congressperson, or anyone else
constitutes opposition. Opposition may be nonverbal, such as
picketing or engaging in a production slow-down. Furthermore,
a complaint on behalf of another, or by an employee's
representative, rather than by the employee herself,
constitutes protected opposition by both the person who makes
the complaint and the person on behalf of whom the complaint
is made.
A complaint about an employment practice constitutes protected
opposition only if the individual explicitly or implicitly
communicates a belief that the practice constitutes unlawful
employment discrimination\13. Because individuals often may not
know the specific requirements of the anti-discrimination laws
enforced by the EEOC, they may make broad or ambiguous
complaints of unfair treatment. Such a protest is protected
opposition if the complaint would reasonably have been
interpreted as opposition to employment discrimination.
----------------------------
Example 1 - CP calls the President of R's parent company to
protest religious discrimination by R. CP's protest
constitutes "opposition."
Example 2 - CP complains to co-workers about harassment of a
disabled employee by a supervisor. This complaint
constitutes "opposition."
Example 3 - CP complains to her foreman about graffiti in
her workplace that is derogatory toward women. Although CP
does not specify that she believes the graffiti creates a
hostile work environment based on sex, her complaint
reasonably would have been interpreted by the foreman as
opposition to sex discrimination, due to the sex-based
content of the graffiti. Her complaint therefore constitutes
"opposition."
Example 4 - CP (African-American) requests a wage increase
from R, arguing that he deserves to get paid a higher salary.
He does not state or suggest a belief that he is being
subjected to wage discrimination based on race. There also
is no basis to conclude that R would reasonably have
interpreted his complaint as opposition to race
discrimination because the challenged unfairness could have
been based on any of several reasons. CP's protest therefore
does not constitute protected "opposition."
----------------------------
* Refusing to obey an order because of a reasonable belief that
it is discriminatory
Refusal to obey an order constitutes protected opposition if
the individual reasonably believes that the order requires him
or her to carry out unlawful employment discrimination.
----------------------------
Example - CP works for an employment agency. His manager
instructs him not to refer any African-Americans to a
particular client, based on the client's request. CP refuses
to obey the order and refers an African-American applicant
to that client. CP's action constitutes "opposition."
----------------------------
Refusal to obey an order also constitutes protected opposition
if the individual reasonably believes that the order makes
discrimination a term or condition of employment. For
example, in one case a court recognized that a correction
officer's refusal to cooperate with the defendant's practice
of allowing white but not black inmates to shower after work
shifts constituted protected opposition. Even if the inmates
were not "employees," the plaintiff could show that his
enforcement of the policy made race discrimination a term or
condition of his employment. Thus, his refusal to obey the
order constituted opposition to an unlawful employment
practice.\14
* Requesting reasonable accommodation or religious accommodation
A request for reasonable accommodation of a disability
constitutes protected activity under Section 503 of the ADA.
Although a person making such a request might not literally
"oppose" discrimination or "participate" in the administrative
or judicial complaint process, s/he is protected against
retaliation for making the request. As one court stated,
It would seem anomalous . . . to think Congress
intended no retaliation protection for employees
who request a reasonable accommodation unless they
also file a formal charge. This would leave
employees unprotected if an employer granted the
accommodation and shortly thereafter terminated the
employee in retaliation\15.
By the same rationale, persons requesting religious
accommodation under Title VII are protected against
retaliation for making such requests.
3. Standards Governing Application of the Opposition Clause
Although the opposition clause in each of the EEO statutes is
broad, it does not protect every protest against job discrimination. The
following principles apply:
a. Manner of Opposition Must Be Reasonable
The manner in which an individual protests perceived employment
discrimination must be reasonable in order for the anti- retaliation
provisions to apply. In applying a "reasonableness" standard, courts and
the Commission balance the right of individuals to oppose employment
discrimination and the public's interest in enforcement of the EEO laws
against an employer's need for a stable and productive work environment.
Public criticism of alleged discrimination may be a reasonable form
of opposition. Courts have protected an employee's right to inform an
employer's customers about the employer's alleged discrimination, as well
as the right to engage in peaceful picketing to oppose allegedly
discriminatory employment practices.\16
On the other hand, courts have found that the following activities
were not reasonable and thus not protected: searching and photocopying
confidential documents relating to alleged ADEA discrimination and showing
them to co-workers\17; making an overwhelming number of complaints based
on unsupported allegations and bypassing the chain of command in bringing
the complaints\18; and badgering a subordinate employee to give a witness
statement in support of an EEOC charge and attempting to coerce her to
change her statement.\19 Similarly, unlawful activities, such as acts or
threats of violence to life or property, are not protected.
If an employee's protests against allegedly discriminatory
employment practices interfere with job performance to the extent that
they render him or her ineffective in the job, the retaliation provisions
do not immunize the worker from appropriate discipline or discharge\20.
Opposition to perceived discrimination does not serve as license for the
employee to neglect job duties.
b. Opposition Need Only Be Based on Reasonable and
Good Faith Belief
A person is protected against retaliation for opposing perceived
discrimination if s/he had a reasonable and good faith belief that the
opposed practices were unlawful. Thus, it is well settled that a
violation of the retaliation provision can be found whether or not the
challenged practice ultimately is found to be unlawful\21. As one court
has stated, requiring a finding of actual illegality would "undermine[]
Title VII's central purpose, the elimination of employment discrimination
by informal means; destroy[] one of the chief means of achieving that
purpose, the frank and non-disruptive exchange of ideas between employers
and employees; and serve[] no redeeming statutory or policy purposes of
its own."\22
----------------------------
Example 1 - CP complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.) CP has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.
Example 2 - Same as above, except the job sought by CP was
in accounting and required a CPA license, which CP lacked
and the selectee had. CP knew that it was necessary to have
a CPA license to perform this job. CP has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
discrimination.
----------------------------
c. Person Claiming Retaliation Need Not Be the Person Who
Engaged in Opposition
Title VII, the ADEA, the EPA, and the ADA prohibit retaliation
against someone so closely related to or associated with the person
exercising his or her statutory rights that it would discourage that
person from pursuing those rights\23. For example, it is unlawful to
retaliate against an employee because his son, who is also an employee,
opposed allegedly unlawful employment practices. Retaliation against a
close relative of an individual who opposed discrimination can be
challenged by both the individual who engaged in protected activity and
the relative, where both are employees. See Section 8-II C.3. for
discussion of similar principle under "participation" clause.
d. Practices Opposed Need Not Have Been Engaged in by the
Named Respondent
There is no requirement that the entity charged with retaliation be
the same as the entity whose allegedly discriminatory practices were
opposed by the charging party. For example, a violation would be found if
a respondent refused to hire the charging party because it was aware that
she opposed her previous employer's allegedly discriminatory practices.
C. PROTECTED ACTIVITY: PARTICIPATION
1. Definition
The anti-retaliation provisions make it unlawful to discriminate
against any individual because s/he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
hearing, or litigation under Title VII, the ADEA, the EPA, or the ADA.
This protection applies to individuals challenging employment
discrimination under the statutes enforced by EEOC in EEOC proceedings, in
state administrative or court proceedings, as well as in federal court
proceedings, and to individuals who testify or otherwise participate in
such proceedings\24. Protection under the participation clause extends to
those who file untimely charges. In the federal sector, once a federal
employee initiates contact with an EEO counselor, (s)he is engaging in
"participation."\25
2. Participation Is Protected Regardless of Whether the
Allegations in the Original Charge Were Valid or
Reasonable
The anti-discrimination statutes do not limit or condition in any
way the protection against retaliation for participating in the charge
process. While the opposition clause applies only to those who protest
practices that they reasonably and in good faith believe are unlawful, the
participation clause applies to all individuals who participate in the
statutory complaint process. Thus, courts have consistently held that a
respondent is liable for retaliating against an individual for filing an
EEOC charge regardless of the validity or reasonableness of the charge\26.
To permit an employer to retaliate against a charging party based on its
unilateral determination that the charge was unreasonable or otherwise
unjustified would chill the rights of all individuals protected by the
anti-discrimination statutes.
3. Person Claiming Retaliation Need Not Be the Person Who
Engaged in Participation
The retaliation provisions of Title VII, the ADEA, the EPA, and the
ADA prohibit retaliation against someone so closely related to or
associated with the person exercising his or her statutory rights that it
would discourage or prevent the person from pursuing those rights. For
example, it would be unlawful for a respondent to retaliate against an
employee because his or her spouse, who is also an employee, filed an EEOC
charge\27. Both spouses, in such circumstances, could bring retaliation
claims.
4. The Practices Challenged in Prior or Pending Statutory
Proceedings Need Not Have Been Engaged in by the Named
Respondent
An individual is protected against retaliation for participation in
employment discrimination proceedings even if those proceedings involved a
different entity\28. For example, a violation would be found if a
respondent refused to hire the charging party because it was aware that
she filed an EEOC charge against her former employer.
D. ADVERSE ACTION
1. General Types of Adverse Actions
The most obvious types of retaliation are denial of promotion,
refusal to hire, denial of job benefits, demotion, suspension, and
discharge. Other types of adverse actions include threats, reprimands,
negative evaluations, harassment, or other adverse treatment.
Suspending or limiting access to an internal grievance
procedure also constitutes an "adverse action." For example, in
EEOC v. Board of Governors of State Colleges & Universities\29, a
university's collective bargaining agreement provided for a
specific internal grievance procedure leading to arbitration. The
agreement further provided that this procedure could be terminated
if the employee sought resolution in any other forum, such as the
EEOC. The Seventh Circuit ruled that termination of the grievance
process constituted an adverse employment action in violation of
the anti-retaliation clause of the ADEA\30.
2. Adverse Actions Can Occur After the Employment
Relationship Between the Charging Party and Respondent
Has Ended
In Robinson v. Shell Oil Company,\31 the Supreme Court unanimously
held that Title VII prohibits respondents from retaliating against former
employees as well as current employees for participating in any proceeding
under Title VII or opposing any practice made unlawful by that Act. The
plaintiff in Robinson alleged that his former employer gave him a negative
job reference in retaliation for his having filed an EEOC charge against
it. Some courts previously had held that former employees could not
challenge retaliation that occurred after their employment had ended
because Title VII, the ADEA, and the EPA prohibit retaliation against "any
employee."\32 However, the Supreme Court stated that coverage of
post-employment retaliation is more consistent with the broader context of
the statute and with the statutory purpose of maintaining unfettered
access to the statute's remedial mechanisms. The Court's holding applies
to each of the statutes enforced by the EEOC because of the similar
language and common purpose of the anti-retaliation provisions.
Examples of post-employment retaliation include actions that are
designed to interfere with the individual's prospects for employment, such
as giving an unjustified negative job reference, refusing to provide a job
reference, and informing an individual's prospective employer about the
individual's protected activity.\33 However, a negative job reference
about an individual who engaged in protected activity does not constitute
unlawful retaliation unless the reference was based on a retaliatory
motive. The truthfulness of the information in the reference may serve as
a defense unless there is proof of pretext, such as evidence that the
former employer routinely declines to offer information about its former
employees' job performance and violated that policy with regard to an
individual who engaged in protected activity. See Section 8-II E. below.
Retaliatory acts designed to interfere with an individual's
prospects for employment are unlawful regardless of whether they cause a
prospective employer to refrain from hiring the individual\34. As the
Third Circuit stated, "an employer who retaliates cannot escape liability
merely because the retaliation falls short of its intended result."\35
However, the fact that the reference did not affect the individual's job
prospects may affect the relief that is due.
3. Adverse Actions Need Not Qualify as "Ultimate Employment
Actions" or Materially Affect the Terms or Conditions of
Employment to Constitute Retaliation
Some courts have held that the retaliation provisions apply only to
retaliation that takes the form of ultimate employment actions\36. Others
have construed the provisions more broadly, but have required that the
action materially affect the terms, conditions, or privileges of
employment.\37
The Commission disagrees with those decisions and concludes that
such constructions are unduly restrictive. The statutory retaliation
clauses prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others from
engaging in protected activity. Of course, petty slights and trivial
annoyances are not actionable, as they are not likely to deter protected
activity. More significant retaliatory treatment, however, can be
challenged regardless of the level of harm. As the Ninth Circuit has
stated, the degree of harm suffered by the individual "goes to the issue
of damages, not liability."\38
----------------------------
Example 1 - CP filed a charge alleging that he was racially
harassed by his supervisor and co-workers. After learning
about the charge, CP's manager asked two employees to keep
CP under surveillance and report back about his activities.
The surveillance constitutes an "adverse action" that is
likely to deter protected activity, and is unlawful if it was
conducted because of CP's protected activity.
Example 2 - CP filed a charge alleging that she was denied a
promotion because of her gender. One week later, her
supervisor invited a few employees out to lunch. CP believed
that the reason he excluded her was because of her EEOC
charge. Even if the supervisor chose not to invite CP
because of her charge, this would not constitute unlawful
retaliation because it is not reasonably likely to deter
protected activity.
Example 3 - Same as Example 2, except that CP's supervisor
invites all employees in CP's unit to regular weekly lunches.
The supervisor excluded CP from these lunches after she
filed the sex discrimination charge. If CP was excluded
because of her charge, this would constitute unlawful
retaliation since it could reasonably deter CP or others from
engaging in protected activity.
----------------------------
The Commission's position is based on statutory language and policy
considerations. The anti-retaliation provisions are exceptionally broad.
They make it unlawful "to discriminate" against an individual because of
his or her protected activity. This is in contrast to the general
anti-discrimination provisions which make it unlawful to discriminate with
respect to an individual's "terms, conditions, or privileges of
employment." The retaliation provisions set no qualifiers on the term "to
discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity\39. They do not restrict
the actions that can be challenged to those that affect
the terms and conditions of employment\40. Thus, a violation will
be found if an employer retaliates against a worker for engaging in
protected activity through threats\41, harassment in or out of the
workplace, or any other adverse treatment that is reasonably likely
to deter protected activity by that individual or other employees.\42
This broad view of coverage accords with the primary purpose of the
anti-retaliation provisions, which is to "[m]aintain[] unfettered access
to statutory remedial mechanisms."\43 Regardless of the degree or quality
of harm to the particular complainant, retaliation harms the public
interest by deterring others from filing a charge\44. An interpretation
of Title VII that permits some forms of retaliation to go unpunished would
undermine the effectiveness of the EEO statutes and conflict with the
language and purpose of the anti-retaliation provisions.
E. PROOF OF CAUSAL CONNECTION
In order to establish unlawful retaliation, there must be proof
that the respondent took an adverse action because the charging party
engaged in protected activity. Proof of this retaliatory motive can be
through direct or circumstantial evidence. The evidentiary framework that
applies to other types of discrimination claims also applies to
retaliation claims.
1. Direct Evidence
If there is credible direct evidence that retaliation was a motive
for the challenged action, "cause" should be found. Evidence as to any
legitimate motive for the challenged action would be relevant only to
relief, not to liability.\45
Direct evidence of a retaliatory motive is any written or verbal
statement by a respondent official that s/he undertook the challenged
action because the charging party engaged in protected activity. Such
evidence also includes a written or oral statement by a respondent
official that on its face demonstrates a bias toward the charging party
based on his or her protected activity, along with evidence linking that
bias to the adverse action. Such a link could be shown if the statement
was made by the decision-maker at the time of the adverse action\46.
Direct evidence of retaliation is rare.
----------------------------
Example - CP filed a charge against Respondent A, alleging
that her supervisor sexually harassed and constructively
discharged her. CP subsequently sued A and reached a
settlement. When CP applied for a new job with Respondent B,
she received a conditional offer subject to a reference
check. When B called CP's former supervisor at A Co. for a
reference, the supervisor said that CP was a "troublemaker,"
started a sex harassment lawsuit, and was not anyone B "would
want to get mixed up with." B did not hire CP. She
suspected that her former supervisor gave her a negative
reference and filed retaliation charges against A and B. The
EEOC investigator discovered notes memorializing the phone
conversation between A and B. These notes are direct
evidence of retaliation by A because they prove on their face
that A told B about CP's protected activity and that A gave
CP a negative reference because of that protected activity.
These notes are not direct evidence of retaliation by B
because they do not directly prove that B rejected CP because
of her protected activity. However, the fact that B gave CP
a conditional job offer and then decided not to hire her
after learning about her protected activity is strong
circumstantial evidence of B's retaliation. (See Section
8-II E.2. below.)
----------------------------
2. Circumstantial Evidence
The most common method of proving that retaliation was the reason
for an adverse action is through circumstantial evidence. A violation is
established if there is circumstantial evidence raising an inference of
retaliation and if the respondent fails to produce evidence of a
legitimate, non-retaliatory reason for the challenged action, or if the
reason advanced by the respondent is a pretext to hide the retaliatory
motive.
----------------------------
CIRCUMSTANTIAL EVIDENCE OF RETALIATION
1. Evidence raises inference that retaliation was the cause of
the challenged action;
2. Respondent produces evidence of a legitimate,
non-retaliatory reason for the challenged action; and
3. Complainant proves that the reason advanced by the
respondent is a pretext to hide the retaliatory motive.
----------------------------
An initial inference of retaliation arises where there is
proof that the protected activity and the adverse action were
related.\47 Typically, the link is demonstrated by evidence that:
(1) the adverse action occurred shortly after the protected
activity, and (2) the person who undertook the adverse action was
aware of the complainant's protected activity before taking the
action.
An inference of retaliation may arise even if the time period
between the protected activity and the adverse action was long, if there
is other evidence that raises an inference of retaliation. For example, in
Shirley v. Chrysler First, Inc.\48, a 14-month interval between the
plaintiff's filing of an EEOC charge and her termination did not
conclusively disprove retaliation where the plaintiff's manager mentioned
the EEOC charge at least twice a week during the interim and termination
occurred just two months after the EEOC dismissed her charge.\49
Common non-retaliatory reasons offered by respondents for
challenged actions include: poor job performance; inadequate
qualifications for the position sought; violation of work rules or
insubordination; and, with regard to negative job references, truthfulness
of the information in the reference. For example, in one case, the
plaintiff claimed that she was discharged for retaliatory reasons but the
employer produced unrebutted evidence that she was discharged because of
her excessive absenteeism\50. In another case, the plaintiff alleged that
his former employer's negative job reference was retaliatory, but the
defendant established that the evaluation was based on the former
supervisor's personal observation of the plaintiff during his employment
and contemporary business records documenting those observations.\51
Even if the respondent produces evidence of a legitimate,
nondiscriminatory reason for the challenged action, a violation will still
be found if this explanation is a pretext designed to hide the true
retaliatory motive. Typically, pretext is proved through evidence that
the respondent treated the complainant differently from similarly situated
employees or that the respondent's explanation for the adverse action is
not believable. Pretext can also be shown if the respondent subjected the
charging party's work performance to heightened scrutiny after she engaged
in protected activity\52.
----------------------------
Example 1- CP alleges that R denied her a promotion because
she opposed the under-representation of women in management
jobs and was therefore viewed as a "troublemaker." The
promotion went to another female employee. R asserts that
the selectee was better qualified for the job because she had
a Masters in Business Administration, while CP only had a
college degree. The EEOC investigator finds that this
explanation is pretextual because CP has significantly
greater experience working at R Company and experience has
always been the most important criterion for selection for
management jobs.
Example 2 - CP alleges that R gave him a negative job
reference because he had filed an EEOC charge. R produces
evidence that its negative statements to CP's prospective
employer were honest assessments of CP's job performance.
There is no proof of pretext, and therefore the investigator
finds no retaliation.
Example 3 - Same as Example 2, except there is evidence that
R routinely declines to offer information about former
employees' job performance. R fails to offer a credible
explanation for why it violated this policy with regard to
CP. Therefore, pretext is found.
----------------------------
8-III SPECIAL REMEDIES ISSUES
A. TEMPORARY OR PRELIMINARY RELIEF
Section 706(f)(2) of Title VII authorizes the Commission to seek
temporary injunctive relief before final disposition of a charge when a
preliminary investigation indicates that prompt judicial action is
necessary to carry out the purposes of Title VII. Section 107 of the ADA
incorporates this provision. The ADEA and the EPA do not authorize a
court to give interim relief pending resolution of an EEOC charge.
However, the EEOC can seek such relief as part of a lawsuit for permanent
relief, pursuant to Rule 65 of the Federal Rules of Civil Procedure.
Temporary or preliminary relief allows a court to stop retaliation
before it occurs or continues. Such relief is appropriate if there is a
substantial likelihood that the challenged action will be found to
constitute unlawful retaliation, and if the charging party and/or the EEOC
will likely suffer irreparable harm because of the retaliation. Although
courts have ruled that financial hardships are not irreparable, other
harms that accompany loss of a job may be irreparable. For example, in
one case forced retirees showed irreparable harm and qualified for a
preliminary injunction where they lost work and future prospects for work,
consequently suffering emotional distress, depression, a contracted social
life, and other related harms\53. A temporary injunction also is
appropriate if the respondent's retaliation will likely cause irreparable
harm to the Commission's ability to investigate the charging party's
original charge of discrimination. For example, the retaliation may
discourage others from providing testimony or from filing additional
charges based on the same or other alleged unlawful acts\54.
The intake officer or investigator should notify the Regional
Attorney when a charge of retaliation is filed and where temporary or
preliminary relief may be appropriate.\55
B. COMPENSATORY AND PUNITIVE DAMAGES
1. Availability of Damages for Retaliation Under ADEA and
EPA
A 1977 amendment to the Fair Labor Standards Act authorizes both
legal and equitable relief for retaliation claims under that Act\56.
Compensatory and punitive damages therefore are available for retaliation
claims brought under the EPA and the ADEA, as well as under Title VII and
the ADA\57. The compensatory and punitive damages obtained under the EPA
and the ADEA are not subject to statutory caps.
2. Appropriateness of Punitive Damages
Proven retaliation frequently constitutes a practice undertaken
"with malice or with reckless indifference to the federally protected
rights of an aggrieved individual." Therefore, punitive damages often
will be appropriate in retaliation claims brought under any of the
statutes enforced by the EEOC\58.
--------------------------
1 Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
2 Section 4(d) of the ADEA, 29 U.S.C. § 623(d).
3 Section 503(a) of the ADA, 42 U.S.C. § 12203(a). Section 503 (b) of the
ADA, 42 U.S.C.12203(b), further provides that it is unlawful "to coerce,
intimidate, threaten, or interfere with anyindividual in the exercise or
enjoyment of, or on account of his or her having exercised or enjoyed,or
on account of his or her having aided or encouraged any other individual
in the exercise orenjoyment of, any right granted or protected by this
chapter."
4 Section 15(a)(3) of the Fair Labor Standards Act (FLSA), 29 U.S.C. §
215(a)(3).
5 Federal employees are also protected against retaliation under each of
the employment discrimination statutes. See, e.g., Hale v. Marsh, 808
F.2d 616, 619 (7th Cir. 1986) (recognizing retaliation cause of action for
federal employees under Title VII); Bornholdt v. Brady, 869 F.2d 57, 62
(2d Cir. 1989) (recognizing retaliation cause of action for federal
employees under ADEA).
6 Where it appears that a charging party's allegation of unlawful
retaliation may also be subject to the jurisdiction of another federal
agency or a state or local government, s/he should be referred promptly to
the appropriate office. For example, if the charging party is covered by
a collective bargaining agreement and is a member of the union, s/he
should be referred to the NLRB to be counseled on unlawful retaliation
under the National Labor Relations Act. Non-payment of overtime pay
should be directed to the Department of Labor, Wage and Hour Division.
The EEOC office should proceed with its investigation of allegations under
its jurisdiction, and refer to any applicable memorandum of understanding
or coordination rule with the agency that also has jurisdiction over the
matter.
7 Krouse v. American Sterilizer, 126 F.3d 494 (3d Cir. 1997).
8 Anderson v. Phillips Petroleum, 722 F. Supp. 668, 671-72 (D. Kan. 1989).
9 See Section 8-II D.
10 See Sections 8-II B.3.c. and d. and 8-II C.3. and 4.
11 Ostrach v. Regents of University of California, 957 F. Supp. 196 (E.D.
Ca. 1997) (individual can be sued for retaliation under section 503 of
ADA).
12 The anti-retaliation provision of the Fair Labor Standards Act, which
applies to the Equal Pay Act, does not contain a specific "opposition"
clause. However, courts have recognized that the statute prohibits
retaliation based on opposition to allegedly unlawful practices. See,
e.g., EEOC v. Romeo Community Sch., 976 F.2d 985, 989-90 (6th Cir.
1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.
1989). Contra Lambert v. Genessee Hospital, 10 F.3d 46, 55 (2d Cir.
1993), cert. denied, 511 U.S. 1052 (1994).
13 See, e.g., Barber v. CSX Distrib. Services, 68 F.3d 694 (3d Cir. 1995)
(plaintiff's letter to defendant's human resources department complaining
about unfair treatment and expressing dissatisfaction that job he sought
went to a less qualified individual did not constitute ADEA opposition
because letter did not explicitly or implicitly allege that age was reason
for alleged unfairness).
14 Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994), cert. denied, 513 U.S. 1081
(1995).
15 Soileau v. Guilford of Maine, 105 F.3d 12, 16 (1st Cir. 1997). See
also Garza v. Abbott Laboratories, 940 F. Supp. 1227, 1294 (N.D. Ill.
1996) (plaintiff engaged in statutorily protected expression by requesting
accommodation for her disability). The courts in Soileau and Garza only
considered whether accommodation requests fall within the opposition or
participation clause in Section 503(a) of the ADA. Note, however, that
Section 503(b) more broadly makes it unlawful to interfere with "the
exercise or enjoyment of . . . any right granted or protected" by the
statute.
16 See, e.g., Sumner v. United States Postal Service, 899 F.2d 203 (2d
Cir. 1990) (practices protected by opposition clause include writing
letters to customers criticizing employer's alleged discrimination).
17 O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996).
18 Rollins v. Florida Dep't of Law Enforcement, 868 F.2d 397 (11th Cir.
1989).
19 Jackson v. St. Joseph State Hospital, 840 F.2d 1387 (8th Cir.), cert.
denied, 488 U.S. 892 (1988).
20 See, e.g., Coutu v. Martin County Bd. of Comm'rs, 47 F.3d 1068, 1074
(11th Cir. 1995) (no retaliation found where plaintiff was criticized by
her supervisor not because she was opposing discrimination but because she
was spending an inordinate amount of time in "employee advocacy"
activities and was not completing other aspects of her personnel job).
21 This standard has been adopted by every circuit that has considered the
issue. See, e.g., Little v. United Technologies, 103 F.3d 956, 960 (11th
Cir. 1997), and Trent v. Valley Electric Association, Inc., 41 F.3d 524,
526 (9th Cir. 1994).
22 Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980).
23 See, e.g., Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp.
1108, 1118 (W.D. N.Y. 1996) (plaintiff stated claim of retaliation where
he was subjected to adverse action based on his wife's protected
activities).
24 The participation clause protects those who testify in an employment
discrimination case about their own discriminatory conduct, even if such
testimony is involuntary. For example, in Merritt v. Dillard Paper Co.,
120 F.3d 1181 (11th Cir.1997), the defendant fired the plaintiff after he
reluctantly testified in his co-worker's Title VII case about workplace
sexual activities in which he participated. The president of the
defendant company told the plaintiff at the time of his termination that
his testimony was "the most damning" to the defendant's case. The court
found that this comment constituted direct evidence of retaliation.
25 Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).
26 See, e.g., Wyatt v. Boston, 35 F.3d 13, 15 (1st Cir. 1994).
27 See, e.g., EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir. 1993)
(agreeing that plaintiff's allegation of reprisal for relative's protected
activities states claim under Title VII); Thurman v. Robertshaw Control
Co., 869 F. Supp. 934, 941 (N.D. Ga. 1994) (plaintiff could make out first
element of prima facie case of retaliation by showing that plaintiff's
close relative participated in the complaint process).
The Commission disagrees with the Fifth Circuit's holding in Holt v.
JTM Indus., 89 F.3d 1224 (5th Cir. 1996), cert. denied, 117 S.Ct. 1821
(1997), that there was no unlawful retaliation where the plaintiff was put
on paid administrative leave because his wife had filed an age
discrimination charge.
28 See, e.g., Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 873-74
(6th Cir.) (defendant's frequent reference to plaintiff's sex
discrimination action against prior employer warranted inference that
defendant's refusal to hire was retaliatory), cert. denied, 502 U.S. 1013
(1991).
29 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992).
30 See also Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) (union's refusal
to proceed with plaintiff's grievance after he filed race discrimination
complaint with state agency constituted unlawful retaliation).
31 ___ U.S. ___, 117 S. Ct. 843 (1997).
32 The ADA, unlike the other anti-discrimination statutes, prohibits
retaliation against "any individual" who has opposed discrimination based
on disability or participated in the charge process. 42 U.S.C. § 12203.
33 See, e.g., EEOC v. L. B. Foster, 123 F.3d 746 (3d Cir. 1997), cert.
denied, 66 U.S. L.W. 3388 (U.S. March 2, 1998); Ruedlinger v. Jarrett,
106 F.3d 212 (7th Cir. 1997).
34 Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).
35 EEOC v. L. B. Foster, 123 F.3d at 754.
36 See Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997)
(reassignment of plaintiff's staff, with attendant loss of status, did not
rise to level of ultimate employment decision to constitute actionable
retaliation); Mattern v. Eastman Kodak Co.,104 F.3d 702 (5th Cir.)
(anti-retaliation provisions only bar "ultimate employment actions" that
are retaliatory; harassment, reprimands, and poor evaluation could not be
challenged), cert. denied, 118 S. Ct. 336 (1997).
37 See, e.g., Munday v. Waste Management of North America, 126 F.3d 239
(4th Cir. 1997) (employer's instruction to workers to shun plaintiff who
had engaged in protected activity, to spy on her, and to report back to
management whatever she said to them did not adversely affect plaintiff's
terms, condition, or benefits of employment and therefore could not be
challenged), cert. denied, 118 S. Ct. 1053 (1998).
38 Hashimoto, 118 F.3d at 676. See also EEOC v. L. B. Foster, 123 F.3d at
754 n.4 (plaintiff need not prove that retaliatory denial of job reference
caused prospective employer to reject her; such a showing is relevant only
to damages, not liability); Smith v. Secretary of Navy, 659 F.2d 1113,
1120 (D.C. Cir. 1981) ("the questions of statutory violation and
appropriate statutory remedy are conceptually distinct. An illegal act of
discrimination -- whether based on race or some other factor such as a
motive of reprisal -- is a wrong in itself under Title VII, regardless of
whether that wrong would warrant an award of [damages]").
39 See, e.g., Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)
("[t]here is nothing in the law of retaliation that restricts the type of
retaliatory act that might be visited upon an employee who seeks to invoke
her rights by filing a complaint"); Passer v. American Chemical Society,
935 F.2d 322, 331 (D.C. Cir. 1991) (Section 704(a) broadly prohibits an
employer from discriminating against its employees in any way for engaging
in protected activity and does not "limit its reach only to acts of
retaliation that take the form of cognizable employment actions such as
discharge, transfer or demotion").
40 Even if there were a requirement that the challenged action affect the
terms or conditions of employment, retaliatory acts that create a hostile
work environment would meet that standard since, as the Supreme Court has
made clear, the terms and condition of employment include the intangible
work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-67
(1986). For examples of cases recognizing that retaliatory harassment is
unlawful, see DeAngelis v. El Paso Municipal Police Officers Ass'n., 51
F.3d 591 (5th Cir.), cert. denied, 116 S. Ct. 473 (1995); Davis v.
Tri-State Mack Distributor, 981 F.2d 340 (8th Cir. 1992).
41 See McKnight v. General Motors Corp., 908 F.2d 104, 111 (7th Cir. 1990)
("[r]etaliation or a threat of retaliation is a common method of
deterrence"), cert. denied, 499 U.S. 919 (1991); Garcia v. Lawn, 805 F.2d
1400, 1401-02 (9th Cir. 1986) (threatened transfer to undesirable
location); Atkinson v. Oliver T. Carr Co., 40 FEP Cases (BNA) 1041,
1043-44 (D.D.C. 1986) (threat to press criminal complaint).
42 For examples of cases finding unlawful retaliation based on adverse
actions that did not affect the terms or conditions of employment, see
Hashimoto, 118 F.3d at 675-76 (retaliatory job reference violated Title
VII even though it did not cause failure to hire); Berry v. Stevinson
Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (instigating criminal theft
and forgery charges against former employee who filed EEOC charge found
retaliatory); Passer, 935 F.2d at 331 (canceling symposium in honor of
retired employee who filed ADEA charge found retaliatory).
43 Robinson v. Shell Oil Co., 117 S. Ct. 843, 848 (1997).
44 Garcia, 805 F.2d at 1405.
45 The basis for finding "cause" whenever there is credible direct
evidence of a retaliatory motive is Section 107 of the 1991 Civil Rights
Act, 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B). Section 107 provides
that an unlawful employment practice is established whenever race, color,
religion, sex, or national origin was a motivating factor, even though
other factors also motivated the practice. It further provides that a
complainant who makes such a showing can obtain declaratory relief,
injunctive relief, and attorneys fees but no damages or reinstatement if
the respondent proves that it would have taken the same action even absent
the discrimination. Section 107 partially overrules Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), which held that a respondent can avoid
liability for intentional discrimination in mixed-motives cases if it can
prove that it would have made the same decision in the absence of the
discrimination.
Some courts have ruled that Section 107 does not apply to retaliation
claims. See, e.g., Woodson v. Scott Paper, 109 F.3d 913 (3d Cir.), cert.
denied, 118 S. Ct. 299 (1997). Those courts apply Price Waterhouse v.
Hopkins, and therefore absolve the employer of liability for proven
retaliation if the establishes that it would have made the same decision
in the absence of retaliation. Other courts have applied Section 107 to
retaliation claims. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d
1181, 1191 (11th Cir. 1997).
The Commission concludes that Section 107 applies to retaliation.
Courts have long held that the evidentiary framework for proving
employment discrimination based on race, sex, or other protected class
status also applies to claims of discrimination based on retaliation.
Furthermore, an interpretation of Section 107 that permits proven
retaliation to go unpunished undermines the purpose of the
anti-retaliation provisions of maintaining unfettered access to the
statutory remedial mechanism.
46 For example, in Merritt v. Dillard Paper Company, 120 F.3d 1181 (11th
Cir. 1997), the plaintiff testified in a co-worker's Title VII action
about sexual harassment in the workplace. Shortly after the case was
settled, the president of the company fired the plaintiff. The court
found direct evidence of retaliation based on the president's statement to
the plaintiff, "[y]our deposition was the most damning to Dillard's case,
and you no longer have a place here at Dillard Paper Company."
47 Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.),
cert. denied, 474 U.S. 981 (1985).
48 970 F.2d 39 (5th Cir. 1992).
49 See Kachmar v. Sunguard Data Systems, 109 F.3d 173 (3d Cir. 1997)
(district court erroneously dismissed plaintiff's retaliation claim
because termination occurred nearly one year after her protected activity;
when there may be reasons why adverse action was not taken immediately,
absence of immediacy does not disprove causation).
50 Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996).
51 Fields v. Phillips School of Business & Tech., 870 F. Supp. 149 (W.D.
Tex.), aff'd mem., 59 F.3d 1242 (5th Cir. 1994).
52 See, e.g., Hossaini v. Western Missouri Medical Center, 97 F.3d 1085
(8th Cir. 1996) (reasonable person could infer that defendant's
explanation for plaintiff's discharge was pretextual where defendant
launched investigation into allegedly improper conduct by plaintiff
shortly after she engaged in protected activity).
53 EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir.), reh'g denied,
738 F.2d 167 (1984). See also EEOC v. City of Bowling Green, Kentucky,
607 F. Supp. 524 (D. Ky. 1985) (granting preliminary injunction
preventing defendant from mandatorily retiring policy department employee
because of his age; although plaintiff could have collected back pay and
been reinstated at later time, he would have suffered from inability to
keep up with current matters in police department and would have suffered
anxiety or emotional problems due to compulsory retirement).
54 See, e.g., Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986)
(chilling effect of retaliation on other employee's willingness to
exercise their rights or testify for plaintiff constitutes irreparable
harm).
55 29 C.F.R. § 1601.23 sets forth procedures for seeking preliminary or
temporary relief. Section 13.1 of Volume I of the EEOC Compliance Manual
sets forth procedures for selecting, developing, and obtaining approval of
such cases.
56 29 U.S.C. § 216(b).
57 See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir.
1993) (FLSA amendment allows common law damages in addition to back wages
and liquidated damages where plaintiff is retaliated against for
exercising his rights under the ADEA); Soto v. Adams Elevator Equip. Co.,
941 F.2d 543 (7th Cir. 1991) (FLSA amendment authorizes compensatory and
punitive damages for retaliation claims under the EPA, in addition to lost
wages and liquidated damages).
58 See Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (evidence of
retaliation supported jury finding of reckless indifference to plaintiff's
rights; although $7 million award for punitive damages was excessive,
district court's lowered award of $300,000 was not).