Man running from fingerFederal law and most state laws protect employees who complain about discrimination and harassment from retaliatory adverse employment actions (such as demotion or termination).  Because retaliation claims can succeed even when the underlying discrimination claims fail, they are popular with both plaintiff’s attorneys and the EEOC.  In 2013, the United States Supreme Court issued an opinion, University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), requiring employees claiming retaliation under federal law to prove retaliation was the “but for” cause of the adverse action, not just a “motivating factor” in the employer’s decision.

While Nassar seemed promising for employers, it was initially unclear how much difference it would make in actual retaliation cases.  Since Nassar was decided, many courts interpreting the case have limited its usefulness, particularly when employees proceed under the “burden shifting” method first created by the Supreme Court in 1973 in McDonnell Douglas v. Green.  The advantage of the McDonnell Douglas formula is that it allows employees to prove retaliation using circumstantial evidence, even if the employer can articulate a legitimate reason for the adverse action.

The Fourth Circuit Court of Appeals recently issued an opinion agreeing with several other circuits that Nassar does not alter the McDonnell Douglas formula.  The case, Iris Foster v. University of Maryland-Eastern Shore, No. 14-1073 (4th Cir. May 21, 2015), shows the challenges posed by retaliation claims.  Iris Foster was a campus police officer who complained to the University that a co-worker began sexually harassing her soon after she was hired.  The University quickly investigated Foster’s allegations and reassigned the harasser to a different location, which stopped the conduct.  However, Foster was terminated less than a month after her most recent complaint.

After Foster filed suit, the University offered several reasons for Foster’s termination, including her excessive use of sick leave, refusal to come in early or stay late when required, several prior disciplines, and the fact that she was “not a team player.”  However, the University’s HR Director admitted to another potential reason for termination – the fact that Foster was preoccupied with her allegations of harassment, and was an “unacceptable fit” for her position because of her frequent complaints.  This testimony, combined with the one-month gap in time between Foster’s last complaint and her termination, was enough for the Fourth Circuit to send Foster’s retaliation case back to the lower court for trial.

While the Fourth Circuit affirmed the dismissal of Foster’s gender discrimination and sexual harassment claims, this was probably of small consolation to the University.  Retaliation claims under federal law include many of the same potential damages as other civil rights claims, such as lost wages, emotional distress, attorneys’ fees, and punitive damages.  During retaliation trials, the employee’s underlying harassment or discrimination allegations are often permitted to be heard by the jury to show that the complaint was legitimate, or to provide background.  Despite the hopeful shift that Nassar seemed to signal, retaliation claims remain a hazard for management.  When dealing with problematic employees who have also made complaints, employers are best served by remaining patient and speaking with their employment counsel before taking action.