This guide has been created by Kirsten Dunham in support of Professor Diamond's Advanced Legal Research class for Spring 2014. The contents of this guide should not be taken as legal advice or as the work product of MU Law librarians.
This guide provides new attorneys with an overview of retaliation claims under civil rights statutes. Many of the resources and challenges identified in this guide are primarily aimed at attorneys representing employees, but the information can also be valuable to employers as they develop policies, respond to complaints, and stay abreast of current employment issues. The state resources are heavily focused on Missouri, but many of the resources can be helpful to attorneys practicing in other states.
Retaliation in employment has been a big area of focus for the Equal Employment Opportunity Council (EEOC). The civil rights statutes (Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, and Equal Pay Act) all include prohibitions against retaliation based on an employee filing a complaint, complaining to her boss, or participating in an employment discrimination proceeding. The number of retaliation claims filed with EEOC has steadily increased. In Fiscal Year 2013, 41.1% of the charges filed with EEOC were retaliation charges– compared to 27.1% in FY 2000, 29.5% in FY 2005, and 36.3% in 2010. (Charge Statistics FY 1997-2013, EEOC). Last year, the EEOC General Counsel David Lopez said that retaliation is the Commission’s “bread and butter.” (Employment Discrimination Report, May 25, 2013, BNA) Lopez also reported that when a plaintiff files a discrimination and retaliation claim, a jury is more likely to find for the employer on the discrimination claim and for the employee on the retaliation claim.
The number of federal retaliation claims brought by plaintiff attorneys is likely to be impacted, however, by the Univ. of Tex. Southwestern Med. Ctr. v. Nassar Supreme Court case that raised the bar on proving causation. The Supreme Court had interpreted the Title VII provision prohibiting discrimination “because of” a protected status to mean that a plaintiff had to show the trait was “a motivating or substantial factor in the employer’s decision” (Price Waterhouse v. Hopkins, 490 U.S. 228(1989)). Then, in the 1991 Civil Rights Act, Congress replaced the provision with language stating that a plaintiff has to show their protected status was “a motivating factor for any employment practice, even though other factors motivated the practice.” 42 U.S.C. § 2000e-2(m). The motivating factor standard was applied to Title VII retaliation claims as well as other civil rights statutes. In 2009, the Supreme Court raised the causation standard for ADEA claims of discrimination “because of . . . age” by holding that the mixed motives standard does not apply to ADEA and "because of" means the plaintiff must prove “but for.” Gross v. FBL Financial Services, Inc., 557 U.S. 167. In Nassar, the Court came to a similar conclusion as to Title VII retaliation claims and held that the “but for” causation standard applies. The Court compared the ADEA language to the Title VII retaliation provision which make it unlawful to discriminate "because" an employee has opposed a practice or participated in a proceeding. In reaching its decision, the Court relied on the plain-meaning of § 2000e-2(m) which addresses status-based discrimination but says nothing about “retaliation;” the structure of the statute and Congress’ specific action to omit retaliation from the mixed motive standard for status-based discrimination; and the fact that Title VII is a “detailed statutory scheme” not open to the court adding default rules as might be possible in a overbroad statute.
The Missouri Human Rights Act (MHRA) creates state cause of action for retaliation against an employee for opposing discrimination or participating in an employment discrimination proceeding. The MHRA has been the subject of legislative scrutiny. Missouri’s law has a lower standard of causation (“because of” means a contributing factor); the Missouri Supreme Court has interpreted the law to impose liability “not just on the corporate or public employer but any person acting directly in the interest of the employer” (Hill v. Ford Motor Co., 227 S.W.3d 659 (2009); punitive damages are allowed; and the state Supreme Court has held that federal law is not controlling (see Daugherty v. City of Maryland Heights, 231 S.W.3d 814, (Mo. banc 2007) (“Missouri's discrimination safeguards under the MHRA, however, are not identical to the federal standards and can offer greater discrimination protection.”). Over the last few legislative sessions, members of the Missouri General Assembly have introduced legislation to, among other things, raise the standard of causation, cap punitive damages, eliminate the common law public policy exception to at-will employment, and require judges to rely on judicial interpretation in Title VII, ADA and ADEA. SB 592 (2011) was passed by the legislature and vetoed by Governor Jay Nixon. In 2012 and 2013, similar legislation was filed.
Other state anti-discrimination laws also differ from the wording of the federal laws. Ways in which some state laws are more "liberal" or provide greater protections include covering small employers, using a lower standard of causation, providing protection for more classes such as sexual orientation, imposing liability on individual employees, and not imposing a requirement to exhaust state remedies. On the other hand, some states have more strict laws. For example, some states impose higher standards of causation, do not allow punitive damages, or do not allow jury trials.
Employment discrimination cases are dificult to win in federal court. Between 1979 and 2006, plaintiff win rates for job cases in federal court was 15% compared to a 51% plaintiff win rate in non-job cases. On appeal, nine percent of plaintiffs win a reversal while forty-one percent of defendants are successful on appeal. Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol'y Rev. 103, 127 (2009). So, bringing a claim in state court may be the best route. It is important to carefully evaluate the particular state laws in comparison to federal laws and consider whether courts in your jurisdiction incorporate the federal standards when interpreting state law. See Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20 Geo. Mason L. Rev. 545, 577 (2013); Stuart W. Davidson, Scott M. Pollins, Determining Employment Discrimination Case Merits Under State and Federal Law, Aspatore, August 2012.
Because this area of law is driven by statutes, case law (particularly in Missouri), regulations, and administrative proceedings, a research strategy will have to be comprehensive. Mapping out the timeline of a retaliation complaint will help identify what sources to use. The research strategy can be divided into three phases: (1) background research, (2) the complaint and administrative investigation, and (3) litigation or other resolution. First, like most legal research questions, beginning with secondary sources such as practice aids and treatises provides an understanding of relevant civil rights statutes, the elements of the retaliation claim, and the mandatory administrative remedies and accompanying timelines. Because there is a significant administrative component to filing a retaliation claim, the Equal Employment Opportunity Council and corresponding state agency (the Missouri Commission on Human Rights in Missouri) are other important resources to learn about the relevant laws, regulations and procedures.
Second, during the complaint and investigation phase, the administrative agencies will be the most important resource. The EEOC and MCHR provide detailed information on how to file a complaint, the investigatory process and timelines. The statutes and regulations will give more detail and can help you write the complaint to meet all the elements of the retaliation claim. Third, in anticipation of litigation, researching case law will add to your knowledge about the statutes. This will be important not only to understand the law but also to evaluate your client’s case and determine which claims to bring and in which court. Your analysis and strategic decisions can also be informed by reading employment law blogs, talking to individual attorneys, using resources offered by employment law organizations, and reading law reports on recent litigation and settlements. Law review articles are also helpful to get a sense of the trends in retaliation claims and civil rights cases in general. If legal researchers have tracked how many employment claims are dismissed in district court, how many plaintiffs win, and whether retaliation claims are more successful than discrimination claims, that information will inform your strategy. As you move into pursuing a private suit, litigation handbooks and guides provide forms, checklists, sample pleadings, interrogatories, motions, and more. Groups like National Employment Law Association and the Missouri Association of Trial Attorneys have TrialSmith which provides forms, pleadings, expert depositions, verdicts and settlement, etc.
Finally, because there is attention on retaliation claims specifically and employment discrimination generally, it is important to stay current. Getting updates and law reports, checking legal blogs, joining organizations like NELA are ways to add to your research as laws are made or amended.