Second Circuit Clarifies Standard for Evaluating Title VII Retaliation Claims
On the heels of the Fifth Circuit Court of Appeals’ recent decision clarifying its view of properly pled Title VII disparate treatment discrimination claims, which we previously covered here, the Second Circuit Court of Appeals in Carr v. New York City Transit Authority, has now clarified its view of the standard for pleading retaliation claims under Title VII.
How We Got Here
In Carr, an employee alleged that after she complained of discrimination, she experienced a retaliatory hostile work environment via deteriorating working relationships and less favorable performance evaluations. More specifically, the employee alleged that she received disrespectful and hostile emails; increased job responsibilities; threats to cancel scheduled vacation if she did not timely complete her projects; the reassignment of her subordinates to new supervisors; and “needs improvement” on her reviews. A lower court dismissed her retaliation claims, finding the complained of conduct was not “sufficiently severe or pervasive to alter the conditions of [her] employment,” and therefore, the employee could not make a prima facie case of retaliation, and further, the employer had legitimate non-retaliatory reasons for its actions and the employee failed to show that those reasons were pretextual.
Retaliatory Harassment is Analyzed Under a Material Adverse Harm, Not Severe or Pervasive, Standard
On appeal, the Second Circuit affirmed the lower court’s ruling, but for different reasons. It reminded the parties that to prove a retaliation claim, the employee must show as part of the prima facie case that the “retaliatory actions, considered either singularly or in the aggregate, were ‘materially adverse.’” To show this adversity, the Court pointed to the standard set by the Supreme Court in its Burlington Northern decision: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In setting this standard, the Court distinguished between discrimination and retaliation claims, the latter of which prohibits a broader scope of conduct. The former limits an employee to showing a “materially adverse change in the terms and conditions of employment,” while the latter – retaliation claims – include those actions, but also other types of workplace harms or even harms outside the workplace context. However, the Court did caution that such actions do not include “trivial harms” because “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”
Here, the Court found, the lower court improperly applied a “severe and pervasive” standard when analyzing the retaliation claim. Even though the claim was premised on a hostile work environment theory, the only question for the Court was whether the conduct, individually or collectively, would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The severity or pervasiveness, while informative, was not the baseline.
And in applying that correct standard, the Court found that the employee’s claim still fell short. More specifically, each of the alleged retaliatory actions here resulted from the employer’s application of its workplace policies that it applied to her and her co-workers, and “a reasonable employee would not be dissuaded from taking protected action simply because they are subject to the same policies as other employees.”
Lessons for Employers
Given this clarifying opinion, it is a good lesson for all employers to ensure that their employment actions (including those that go beyond the standard ones impacting the terms and conditions of employment), are being taken for legitimate, non-discriminatory reasons. Further, employers are well-advised to implement strong policies and procedures designed to limit the possibility of a resulting retaliation claim if and after an employee complains of discrimination. Employers should also remember that applicable state and local laws may also apply, which often apply protections even broader than the ones afforded under Federal law.
