Retaliation claims now constitute the most frequently cited basis for charges filed before the Equal Employment Opportunity Commission. Lawsuits based on retaliation can be especially dangerous for employers because they do not depend on the legal sufficiency of the underlying discrimination or harassment claims. This reality was illustrated in a new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia).
In Ali v. BC Architects Engineers, PLC, the plaintiff complained internally that her demotion was due to her race and gender. Several months later, she was moved to a new position but not the previous one she had held. After traveling outside the U.S., she was again demoted, and she again complained about discrimination. She was terminated one hour after making this second complaint and filed suit alleging discrimination, harassment, and retaliation. The district court dismissed the claims, concluding that the employer has demonstrated legitimate business reasons for the demotion and termination decisions.
On appeal, the Fourth Circuit agreed that the plaintiff had not met her burden of proof with respect to the discrimination and harassment claims. However, the court revived the plaintiff’s retaliation claim, remanding it for trial. The Fourth Circuit noted the multiple complaints, concluding it was plausible that the employer demoted her after the initial one and terminated her directly after she complained about the second demotion.
Even though the underlying discrimination and harassment claims were deemed legally insufficient, the timing of the demotion and especially the termination allowed the plaintiff’s retaliation claim to survive. Employers should understand that whether or not an employee’s complaint of discrimination has merit, they cannot take adverse action against that individual based on frustration or anger regarding that complaint. Once the employee has complained, future adverse action should only be taken after a thorough review of the factual and legal issues involved with such a move.
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