Retaliation can come in all shapes and sizes

Earlier this month, a federal appellate court addressed a few situations involving retaliation claims in the workplace in which parties (and sometimes courts) may misapply the law, namely, Title VII of the Civil Rights of 1964.

So, let’s clear this up.

A retaliation claim has three elements: a protected activity, such as an internal complaint of discrimination; (2) a subsequent adverse employment action, like a termination; and (3) a nexus, or “causal link” between the two.

Let’s focus on two situations involving a possible protected activity.

Suppose an employer bypasses an employee for a promotion. The employee asks his supervisor if it was because he is Chinese. Is that a protected activity?

It can be, according to the Third Circuit Court of Appeals, especially if the supervisor perceives it that way:

Protected activity can include informal protests, including making complaints to management, but it must not be equivocal or vague. As relevant here, retaliatory action can also result from an employer’s perception that an employee is engaging in protected activity. There is no meaningful difference between [an employee] asking, “Am I not being promoted because I’m Chinese?” and [the emplouyee] saying, “I think I am not being promoted because I’m Chinese.” (cleaned up).

In this situation, the plaintiff’s supervisor referred him to HR, reflecting that he understood the plaintiff to be alluding to discriminatory treatment. It was not vague or equivocal.

But suppose the same employee walks into HR and asks about the company’s procedures for reporting discrimination and harassment but denies that he has anything to report. Is that a protected activity?

It isn’t because the employee did not explicitly or implicitly complain about discrimination based on a protected characteristic.

For the final example, let’s focus on the last element of a retaliation claim: the causal connection. Here, timing can be critical. But for the timing alone to be sufficient, it must be “unusually suggestive of retaliatory motive.”

Many management-side lawyers like me often cite a Third Circuit decision where the court seemed to set the benchmark at three weeks, i.e., any larger temporal gap between protected activity and adverse employment action requires more evidence of retaliation to make it to a jury.

It turns out we may have been too rigid.

Other cases suggest that the inference of “unduly suggestive” proximity “begins to dissipate where there is a gap of three months or more.” So, insisting on a tighter three-week window may be “too attenuated.” Suppose a plaintiff complains about a discriminatory performance review. If the defendant fires him six weeks later, that timing is “unusually suggestive of retaliatory motive,” which is “enough to infer causation.”

The bottom line is retaliation, the most common employment discrimination claim, can come in all shapes and sizes.