Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.
The Fifth Circuit’s review in Brandon v. Sage Corp., No. 14-51320, addresses whether the threat of a pay cut is sufficient to support a retaliation claim brought by an ex-employee who said that she was threatened in retribution for her support of a transgender co-worker. Margie Brandon, the former director of a trucking school, initially brought claims for discrimination and retaliation pursuant to Title VII. However, she is only appealing the trial court’s decision with regard to dismissal of the retaliation claim. The Fifth Circuit’s review will focus on whether the threat of a pay cut is enough to constitute an adverse employment action; i.e. an action that is taken to prevent an employee from opposing discrimination or from participating in protected activity or activities involving discrimination proceedings.
Brandon is alleging that she witnessed discrimination against transgender worker Lorenzo Eure and that she was questioned as to why she supported the hiring of Eure based upon his being transgendered. Thereafter, Brandon alleges that her employer told her that they would “deal with [her] seriously for hiring that.” The employer allegedly cut Eure’s hours, therein prompting Brandon to complain about the treatment of Eure. Brandon alleges that as a result of her complaint regarding the reduction in hours, the employer threatened “to cut [Brandon’s] pay in half.”
Brandon and Eure both left their employment and filed separate lawsuits. The employer won summary judgment in both cases and both plaintiffs are appealing the decisions. The EEOC filed an amicus brief supporting Brandon’s position that threat of reduction in pay is enough to constitute an adverse employment action.
The scope of what triggers liability for retaliation, and thereby constitutes an adverse employment action, is unclear. Anything from refusing a specific working location to termination has been recognized as an adverse employment action. Other examples of actionable adverse employment actions include asking an applicant to fill out an I-9 on a short deadline, delaying an employee’s return to work while on medical leave, and an employer’s failure to intercede in situations of co-worker shunning.
Retaliation claims can be very difficult to defend and liability often rests upon the temporal proximity between protected activity and the alleged adverse employment action. Employers need to train decision-makers to consider the actions that are taken and the potential liability that may attach as a result of perceived slights.