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August 31, 2023
Recently, the U.S. Court of Appeals for the Second Circuit clarified the standard for evaluating retaliation claims under Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), and the Civil Rights Act of 1866 (Section 1981). See Carr v. N.Y.C. Transit Auth., No. 22-792-cv, 2023 U.S. App. LEXIS 20237 (2d Cir., Aug. 7, 2023). The Second Circuit noted that the scope of the statutes’ retaliation provisions is broader than their discrimination provisions and extends beyond workplace-related or employment-related retaliatory acts and harm. It further noted that retaliatory harm must be “materially adverse,” a lower standard than the “severe or pervasive” standard of discriminatory harm.
In Carr, the plaintiff alleged that she was subjected to a retaliatory hostile work environment after she complained of discrimination for being passed over for two promotions. Carr filed suit, alleging race, gender, and age discrimination under Title VII, the ADEA, and Section 1981. The court dismissed Carr’s claims before trial. Carr appealed. One of the issues on appeal was the legal standard to be used for evaluating Carr’s retaliation claims.
The scope of the statutes’ retaliation provisions is broader than their discrimination provisions.
In reaching its decision, the Second Circuit discussed, at length, a retaliation case decided by the U.S. Supreme Court (Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)), and noted that Title VII’s anti-retaliation provision prohibits discrimination more broadly than its anti-discrimination provision, which prohibits only actions affecting certain enumerated aspects of employment.[1] The Supreme Court concluded that, because the two provisions are different, they should be interpreted differently and held that the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.
Retaliatory harm must be materially adverse.
The Supreme Court in Burlington Northern also defined the level of harm necessary for an alleged retaliatory action. It held that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse – that is, it might have dissuaded a reasonable worker from making or supporting a charge of discrimination, but is more than trivial harms, petty slights, or minor annoyances. The Supreme Court rejected the notion that a retaliation plaintiff must show a “materially adverse change in the terms and conditions of employment,” like in the discrimination context.
The Second Circuit’s analysis as to Carr
Though the Second Circuit found that the lower court applied the wrong standard in denying Carr’s retaliatory hostile work environment claim (the lower court required Carr to show that the retaliatory actions were sufficiently severe and pervasive that they altered the terms and conditions of her employment), the Court nevertheless affirmed the lower court’s decision to dismiss her claims. It found that the allegedly retaliatory actions (Carr’s diminishing performance ratings, not having analysts reporting directly to her, being assigned additional projects, and her supervisor’s hostile tone in emails) were not materially adverse. Instead, the Court held that the alleged retaliatory actions were the result of generally applicable workplace policies and Carr had not adduced evidence that these policies were applied to her and not others. The Court further held that Carr could not demonstrate that the Transit Authority’s stated reasons for its actions (that Carr was not adequately or timely completing her duties and that it had become increasingly challenging to work with her) were pretextual.
Employer takeaways
Retaliation claims have been on the rise for many years. Such claims are a challenge to avoid when addressing concerns raised by current employees and are equally challenging to defend when litigation ensues. Retaliation claims often proceed toward trial even when the underlying discrimination claims are dismissed. The Second Circuit’s decision in Carr increases employers’ potential exposure on retaliation claims by highlighting their broad scope. Seek counsel when employees raise discrimination claims to ensure that you take steps to prevent retaliation.
This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
[1] The anti-discrimination provision makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The anti-retaliation provision bars actions that “discriminate against” an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
