Abby Larimer: Hi, my name is Abby Larimer. I'm council at FordHarrison. I'm here today to talk about Title VII Litigation. The purpose of this course is to introduce listeners to the various kinds of litigation that arise under Title VII. We'll discuss briefly some of the background of Title VII and some of the legal developments that have helped shape the law into what it is today. We'll also discuss at a high level, the various kinds of claims and the general element of each claims. And hopefully listeners will be left with an understanding of the general framework for Title VII Litigation.

   Our learning objectives are to understand the general background of Title VII, understand the types of litigation and causes of action that arise under Title VII, understand the relationship between the Equal Employment Opportunity Commission and Title VII, and educate practitioners on common defenses to Title VII claims. We will also discuss discovery issues that generally arise under Title VII claims. First, we'll talk a little bit about the general background of Title VII.

   So when we're saying Title VII, what we are referring to is Title VII of the Civil Rights Act of 1964, which was absolutely groundbreaking historical legislation tackling the issues of systemic discrimination in the United States. In the employment context, what Title VII did was outlaw discrimination based on race, color, religion, sex, which can include pregnancy, national origin, and now sexual orientation and gender identity. This was a huge change for employers because the Supreme Court had previously held that Congress did not have the power to prevent discrimination in private businesses.

   These were in some cases called the, referred to as the 1883 Civil Rights cases. An interesting part of the history of Title VII too, is that initially it was not to include gender and sex as a protected category. Those were actually thrown in, in an attempt to defeat the passage of the bill with the thought being that certainly no one would ever pass something that would prohibit discrimination based on sex. But that did pass in the final moments.

   This is also important in terms of the legal history behind it. Because there was not much legislative history to look back to when the first cases regarding sex discrimination were being decided. And so actually there is a quote from Meritor Savings Bank, noting that saying, "The prohibition against discrimination based on sex was added to Title VII at the last minute of the floor, on the House of Representatives. The bill quickly passed as amended. And we are left with little legislative history to guide us in interpreting the Acts prohibition against discrimination based on sex."

   And again, that's a quote from Meritor Savings Bank v. Vinson, 477 U.S. 57 from 1986. And this was a case that held actually that sexual harassment could be a kind of discrimination under Title VII, as initially that wasn't directly written into the Civil Rights Act of 1964. And recently just last year, this is actually a Supreme Court case from 2020, Bostock v. Clayton County, Georgia. This extended the protections of Title VII based on sexual orientation and gender identity. So expanded what could be a protected class.

   And in addition to just prohibiting discrimination, it also prohibited illegal harassment based on a protected category. So legally this is considered, harassment would be considered a form of discrimination. Additionally, Title VII also protects employees from retaliation. If an employee engages in protected activity, this means to complain about illegal discrimination, participate in an employment discrimination proceeding, or reasonably oppose discrimination.

   And there can be class action legislation or class action litigation, excuse me, under Title VII, which is certainly less common than your single plaintiff complaint, but it still happen. And who does Title VII apply to? So in the private sector, Title VII applies to most U.S. employers with at least 15 employees, and it may also apply to U.S. controlled companies operating abroad under certain circumstances. In the public sector...

   So who does Title VII cover? In the private sector, coverage extends to most U.S. employers with at least 15 employees. And Title VII may also apply to U.S. controlled companies operating abroad under certain circumstances. In the public sector, it applies to state and local government employers with 15 or more employees, and also to federal government employees and applicants for federal employment. And covered employees under Title VII, include any individual employed by an employer. That's from 42 USC, section 2000 EF, but does not apply to independent contractors. So one cause of litigation is if someone has been misclassified as an independent contractor, something happens to them that maybe could have been illegal under Title VII, had they been an employee and then they can bring a lawsuit on that basis.

   So just another reason to be careful about whether individuals are properly classified. So that's just something to be careful about when you're considering if someone is an employee or an independent contractor, and to make sure that they are properly classified. The Equal Employment Opportunity Commission, the EEOC, and we'll talk a lot about them today, is the federal agency that was established and responsible for enforcing Title VII.

   So individuals who want to pursue claims under Title VII must file a charge of discrimination with the EEOC or an applicable state agency prior to bringing a lawsuit, for the EEOC to investigate and possibly conciliate or mediate a claim. When the EEOC is investigating a claim, this is generally going to include obtaining a position statement from the employer, interviewing witnesses and issuing some follow up information requests.

   And they're going to of course start with the charge of discrimination that's filed by the individual that's basically going to outline why they think that they were discriminated against, some basic facts, maybe identify the person, give some background information about the employer. And that'll be the starting point for the investigation. Conciliation is when the charge is in the alternative dispute resolution, part of the EEOC. And they will see if they can reach some resolution prior to getting involved in the matter.

   Under Title VII, the EEOC does have the ability to pursue a claim against an employer on behalf of an individual. So it's rare, but it does happen where the EEOC will actually step into the lawsuit and take over and litigate on behalf of the plaintiff. In 2020, the EEOC received 67,448 charges of discrimination and secured $439.2 million employees. And it seems like a lot of charges. This was actually a decline in the number of charges that were filed, but was an increase in the monetary recovery.

   And speaking of monetary recovery, what are damages normally under Title VII? So initially the remedies were limited to equitable remedies, reinstatement, back pay, and injunctions against the employer for future acts of discrimination. In the Civil Rights Act of 1991, this was passed in response to some Supreme Court decision that were limiting the rights of individuals pursuing employment claims. And this is really what put the teeth into Title VII, and it also allowed jury trials under Title VII. It also expanded damages to include compensatory and punitive damages. And of course, punitive damages, those punishing damages, those are always the big ones and the millions that we see.

   And one thing to also note about the EEOC pursuing claims against employers, generally if a private employer is bringing a lawsuit on behalf of an employee they're really after money, a financial settlement. If you are negotiating with the EEOC in addition to a monetary settlement they may also be interested in having a training component, making sure managers are aware of a policy or something as part of the settlement. So that's just something to keep in mind too, about the EEOC's power and the authority of what they have to do.

   So now we'll talk a little bit more about the specific types of claims that arise under Title VII. So we'll start off with one of the more obvious ones, discrimination. Under discrimination, there are a few different types of claims. We'll start with disparate treatment claims, and this refers to obvious discrimination or maybe not so obvious, but the type of discrimination that's just treating applicants and employees differently based on membership in a protected class. For example, promoting a male and employee over an equally qualified female employee, not hiring someone from their race.

   So this is what a lot of people think about when they think about discrimination lawsuits. So in disparate treatment claims, the burden of proof is on the plaintiff to establish that there has been a legal violation, and this can be done in a few ways. The first is direct evidence of discrimination. This would be evidence that the adverse employment action was motivated by an employer's discriminated animus. Now, of course, this is rare. Most people aren't going to just come out and say, particularly 2021, you didn't get the promotion because you're a female.

   So again, not to say it doesn't happen, but that's rare. More cases are determined based on circumstantial evidence. And when you're evaluating a case with circumstantial evidence, the courts will look to an analysis that's referred to as the McDonnell Douglas burden-shifting analysis. And this analysis comes from the case McDonnell Douglas Corp. v. Green, that's 411 U.S. 792, which involved a claim of race discrimination and was actually a case where the Supreme Court went nine to zero in favor of the employee.

   And under the McDonnell Douglas burden-shifting analysis, the first part is the plaintiff must establish their prima facie case. And generally, this requires the plaintiff to show membership in a protected class that they were qualified for the position that, they were subject to an adverse employment action, which is something that was a materially adverse effect on the individual's employment, and that the employer treated similarly situated employees outside of the protected class differently.

   So, I mean, generally, some of these elements are going to be easier to prove than others, certainly membership in a protected class. Almost everyone is in some sort of a protected class. But as you can go down the line, they'll get a little bit more difficult. So once the plaintiff has established the prima facie case, the burden then shifts to the employer to articulate a legitimate non-discriminatory reason for the employment action.

   And so this is going to be your absences, company violations policies, just whatever the reason that the employer gave. Once the employment with the employer puts forth this legitimate non-discriminatory reason for the employment action, the burden then shifts back to the plaintiff for the plaintiff to show that the employer's proffered reason is actually pretextual or fake for discrimination. The ways that an employee can show pretext, this can be and of course there's lots of different examples, but this can include a violation of the employer's own policies, inconsistencies, and timing. Timing certainly can be huge. I think something that comes up in litigation a lot, an employer will give the reason for termination, it turns out, maybe it was something that the employee did two years ago.

   And so then the question becomes, well, why didn't you terminate the employee then? So all sorts of things like that, looking at the handbook if they had a policy, sometimes there's the unwritten policy and you have to go through. Again, was that applied inconsistently. So certainly lots of discovery issues that come up with that. And again, we're talking about federal law that's going to be generally the same through each circuit, but there's going to be variances not only among your district courts, but even among the courts of appeals. And so certainly, if you're practicing in one jurisdiction and then handling an EEOC charge or some litigation in another you definitely want to research and make sure that you're really focusing on the standard that has been developed in your location.

   So something else I want to talk about briefly, when you start doing Title VII Litigation you may hear about mixed motive. And this was something that was recognized by the Supreme court in Price Waterhouse v. Hopkins. That's 490 U.S. 228. This is a case from 1989. This dealt with a case where there was evidence of both lawful and discriminatory reasons for taking an adverse employment action. So here, it affects the burden shift because then the plaintiff establishes that discrimination was a motivating factor. And then the burden shifts for the employer to prove it would've made the same decision without the unlawful factor. Mixed motive does not entirely avoid liability for an employer, but it can limit the employer's damages.

   So what are some common defenses to these types of cases? So one, and this goes to if you're on the employee or the employer side you want to look at that charge. If you're a plaintiff's attorney, you may have gotten the charge of discrimination after the plaintiff themselves went to the EEOC and filed it. Sometimes the EEOC will be more helpful than others when they're having someone fill out a charge. So you first want to make sure was it properly and timely filed? And that's going to be not only the time limits in your particular jurisdiction, which could potentially be extended if you are in a jurisdiction with a state agency. And that timeframe is generally 180 calendar days. Again, unless you're looking to a state agency and then it may be extended to 300 days in those circumstances.

   You also want to look at the jurisdictional requirements of the scope of the charge and determine if the employee cannot proceed in litigation if there are claims that are not properly identified in the charge of discrimination. So for example, you can't go file a claim for retaliation when your initial charge only indicated that you felt there was just discrimination. So that's just something to keep in mind to start with the charge and make sure everything is in order there on both sides. Other defenses, obviously the factual defenses. What was the business reason for the adverse employment action and has the employer treated employers consistently?

   And this may require, this is where we can get into depositions. What were the documents that show the business reason for the adverse employment action? Is there a documented history, performance issues or is this just something seemingly came out of thin air? The decision maker, there are some defenses under the law if the decision maker is in the same protected class or for example, was the same actor if someone hired and then fired someone in short order, is there a defense that they wouldn't have been discriminating if they hired them.

   After-acquired evidence is another defense that comes up a lot. Under the after-acquired evidence doctrine, this allows an employer to put forth evidence that the employer found later, showing that the employer would have terminated the employee if they'd known about that evidence at that time and during the employee's tenure. And after-acquired evidence can refer to a lot of things, but a lot of times this might be something fraudulent or something obviously the employee did when they were there that comes up someone else is taking over the workload and suddenly they realize, a whole bunch of stuff wasn't done.

   Very commonly an issue that comes up in employment litigation under Title VII with after-acquired evidence has to do with someone being untruthful on a job application, maybe lying about having a previous employment or a college degree, or something along those lines. So that's another of very common defense to Title VII cases. We've talked a little bit just about some of the discovery issues that arise going through these, but some other big ones are comparators, like we mentioned earlier. So this is going back to the element of the plaintiff's prima facie case, that they have to just show the employer treated similarly situated employees outside of the protected class differently. So they will look to comparators. So these are going to be the other employees that the plaintiff said were similarly situated and were treated more favorably because of their protected class.

   So again, you'll want to do some research in your particular jurisdiction to determine what the standard is for a similarly situated individual. Because again, this can vary. And then a lot of discovery issues arise from this. Certainly we are talking about other employees private information. That may be disciplinary writeups, information that other employees don't want to get out there for very good reasons. So usually this is where protective orders and things like that come in. Something else that comes up a lot in discovery with comparators, and it's really going to depend on the facts of your case, but the plaintiffs are probably going to try and get more documents, [inaudible 00:22:05] about more comparators, defense attorneys are going to try and block that.

   So you really want to try and figure out who are the appropriate comparators and who really are the similarly situated employees. Certainly the company's policies and procedures handbooks, all the employment and personnel policies. Those are going to be very important. If you're defending a charge of discrimination, that's one of the first things that you want to show the EEOC, that the employer had a policy, this is how people were trained on it. And then once it gets into litigation, did the employee actually receive a copy of the handbook and get a handbook acknowledgement? Was there a policy prohibiting harassment discrimination. We'd like to think that every employer has that, but still shockingly a lot. Don't and again, the applicability of these various policies and procedures can come up as an issue in discovery.

   Then also the plaintiff's employ and history. And this can include, it's not only going to include their employment at this particular employer, but also their employment history prior to that. You'll often see discovery requests asking for 10 years of employment history who they were supervised with. Have they been fired, have they filed any lawsuits before, their personal history. If you have someone claiming significant compensatory damages, they may be looking into, were there other reasons that the plaintiff would've suffered from emotional distress. And this can sometimes get very intrusive for a plaintiff.

   There may be a divorce issue, a death in the family or something like that. And that could potentially be relevant. Again, depending on the type of damages the plaintiff is claiming, if they did say that they had to seek therapy, medical records come into play as well. So there's a lot that goes there. And the plaintiff's damages also. And this is going to include not just their back pay if they want, or if they're asking for reinstatement or if there's any front pay argument, and one of the biggest things that... And one of the biggest discovery issues when you're trying to look into the plaintiff's financial damages is whether the plaintiff has mitigated their damages. So this is going to include what efforts did the plaintiff make to find other employment, to get another job and to mitigate the financial loss of the other employment. And of course, those are just a few. I know anyone that has practiced Title VII knows that there are a lot more sort of discovery issues that come up.

   I mean, those are just some of the biggest ones that we tend to see, but as you know with employees, and one thing that I think makes Title VII Litigation so fun is there are always crazy and different fact patterns and so different things can be relevant every time. But again, those are just some of the common things that you can probably expect to come up in any Title VII Litigation case. So what sort of remedies would be available for a plaintiff in a Title VII case? So the remedies, this can include injunctive relief, back pay, reinstatement or front pay, compensatory and punitive damages, and also attorneys' fees, which when you're talking about seeing a case through trial can get certainly very, very significant.

   Now, there are statutory caps on compensatory and punitive damages. And again, we're talking about punitive damages. These are the ones that normally are getting cases in the news. But here under Title VII, their caps. So employers with 15 to 100 employees, their damages are capped at 50,000. Employers with 101 to 200 employees are at 100,000. Employers with 201 to 500 employees are at 200,000. And employers with more than 501 employees, they're capped at 300,000.

   Now, we'll move on and talk about disparate impact cases under Title VII. Disparate impact cases refer to when an employer uses criteria for employment actions that have the effect of disqualifying or limiting individuals in a protected category. So this is a particular employment practice that causes disparate impact. So one example, this is the EEOC v. CSX Transportation. Case number 3:17-cv-03731. This was a $3.2 million recovery over a strength test that caused a disparate impact on female workers.

   And to bring a case under the disparate impact theory, the plaintiff must first allege coverage, identify the particular employment policy being challenged, specify the protected class that has been disproportionately effective, and also specify the adverse effect that this protected group has experienced. So one of your biggest discovery issues in cases like this is going to be that you were dealing with statistical data. And here the EEOC relies on what's referred to as the four-fifths rule of thumb, meaning that the qualifying rate for the protected group is less than four fifths or less than 80% of the qualifying overall rate. And that's the statistic that you're going to be looking at. That's from a 29 CFR section 1607, 4D. Now, one common defense to these kinds of cases is, if whether there is a business reason behind the challenged practice or if this is something that is related to the job.

   So you may have heard the term BFOQ, Bonafide Occupational Quality Qualification. And again, this might be what we were talking about this instance earlier. So the employer might say, well, there's a weightlifting requirement and we just don't feel like women can lift 100 pounds. These kinds of are rare. That is usually just not going to stand. The example I just mentioned, again, that's discriminatory, it's been found to be discriminatory. So if you are trying to proceed with that defense, it's something that's probably going to need to be researched a lot, because again, they're very, very rare.

   Now we're going to move on and talk about another claim under Title VII, harassment cases. The first kind of harassment cases we'll discuss are quid pro quo, and these are usually pretty straightforward. Also generally, we see a quid pro quo. This come up in a sexual harassment case. And it translates to this for that. And so again, these cases are most common in situations where somebody is seeking sexual favors in return for a job benefit. So it's the quintessential examples that if you sleep with me, I'll give you a promotion, but of course, there can be a lot of different things that fall under this as well. So with quid pro quo harassment, the plaintiff must show membership in a protected class that unwelcome sexual advances were made, that the harassment was sexually motivated, and that the employee's reaction to the advances negatively affected a tangible aspect of employment.

   And this could be compensation, employment status. And this is where issues of respondeat superior could come up, making sure that the harasser had authority or influence, or was somehow able to influence. So that could be not even a situation where it's a direct supervisor, but someone who may be again, able to really affect someone's job. Maybe the supervisor's their best friend in the company. Just something like that. And one issue, of course, that will come up in these kinds of cases, is whether this behavior was unwelcome. Usually in a quid pro quo case other than the just he said, she said and that's where things like text messages, the history between the individuals. Now, again, if this is someone that is someone supervisor, even if it was consensual, this isn't going to be really a great defense for the company.

   There's strict liability for supervisors. And so the company doesn't have to, this means company didn't have to have knowledge. And how they dealt with this after the fact also is not going to be as relevant in other kinds of cases when you're talking about someone's supervisor. So more commonly in litigation, when we're talking about harassment claims, we are dealing with hostile work environment claims. And for a hostile work environment claim, the plaintiff must show first again, membership in a protected class that they were subject to inappropriate and unwelcome conduct, and this could be verbal or physical due to the protected class. That's somehow attributable to the employer. And so this could, not to get too off from the elements, but that could include some behavior outside of work. For example, people going out to drinks after training, hotel room raped by a coworker during training.

   There's a case on that, Lapka v. Chertoff, 517 F.3d 974 and this is from the Seventh Circuit. But again, it's not just limited to the behavior that is in the workplace. And then the last element the plaintiff is going to have to prove is that, the behavior was sufficiently severe and pervasive to unreasonably interfere with work, or is behavior that creates an intimidating and hostile or offensive workplace. And we'll talk about that a little more.

   And one note too, when we're talking about the membership and protected class, it has actually, even though sexual orientation is a relatively new protected class for the purposes of Title VII, same sex harassment has been prohibited under Title VII regardless of sexual orientation for a while now. And this is from a case Oncale v. Sundowner Offshore Services, 523 U.S. 75, that's from again, 1998. And one factor that will affect the employer's liability here, who was the alleged harasser. Is that someone's supervisor, which we just discussed some of the issues with quid pro quo harassment, but certainly, in a hostile work environment. We're also going to have some respondeat superior here, and then comparing that with just coworker harassment.

   And in that case the plaintiff's going to have to show that the employer knew or should have known about the harassing behavior and failed to take action. And that should have known as also important because that's saying, the employer can't just turn a blind eye. If there was enough going on that the employer really should have known about the harassment, then the knowledge is going to be imputed to them. So that's where we talked a little bit earlier about if there have been other complaints made but the there's a lot of discovery issues that certainly go into that. And we'll talk about those a little bit more in a second.

   So some very common defenses to hostile work environment cases, was the conduct on welcome, or was the conduct mutual and the plaintiff engaged in similar conduct. So maybe this is a case involving jokes of a sexual nature or other inappropriate jokes. And they looked through and actually the plaintiff was sort of engaging, sending out their own jokes or somehow encouraging this behavior too. So that is a big defense here, what was the plaintiff's own conduct?

   And again, we're going back to this first element that the plaintiff, they have to attribute this to their... the inappropriate behavior has to be due to their membership in a protected class. So it's a weird defense sometimes, but it can be this was someone that was just mean to everyone and that this behavior wasn't directed at your protected class, and sometimes this is called the equal opportunity offender. Wasn't really just mean to the men, but this supervisor was just flat out mean to everyone.

   And then one of the biggest things that gets litigated a lot, that the behavior wasn't severe and pervasive enough to create a hostile work environment. And this could probably be almost its own topic, but we'll talk through it a little bit, that there may be so different standards are going to look at under the severe and pervasive element, different things you're going to look at under the severe and pervasive element, were these just isolated statements. Maybe a statement made once, one comment, five seconds, and then nothing happens again until a few months later.

   It's not intended to cover just petty slates and minor annoyances. And you'll see often quoted in these kinds of cases, that Title VII is not intended to be a general civility code. And so it can be a higher bar. It usually is, as to what is going to satisfy this element. So it's not just any behavior. He's made this one annoying comment about women at work, and now it's a hostile work environment. It has to be more than that. And again, you will see some variances in your different jurisdictions. What's the threshold, what's the base here.

   So again, be sure to be looking at that, make sure you're looking at the right and applicable courts. So other factors again, going back to what could make something severe and pervasive. This could include something like the frequency of the discriminatory conduct. The severity, was it physically threatening or humiliating? And that would be compared to just in your offensive utterance. They'll also look to whether it did unreasonably interfere with an employee's work performance. This is from Harris v. Forklift Systems. This is 510 U.S. 17. This is a case from 1993. And I think what becomes really important in these cases is that you are not looking at just a single factor. You'll hear the phrase and see it in brief, its totality of the circumstances.

   So factoring in again, all these different, how often did it happen? Let's say it's someone they're intimidating, you have to walk by them every time to go to the bathroom. And every time you walk to the kitchen to get water, they're going to make a comment. Was there anything physical about it? Again, versus just the inappropriate offensive comment that while we don't like, and is it great for the workplace and other problems with that affecting employee morale, but maybe is not necessarily by itself illegal.

   Another common defense is that the conduct was not both objectively and subjectively offensive. So under this standard, first, you look towards whether the conduct was objectively offensive. And that's going to be whether any reasonable person would find the conduct abusive. Of course, again, this is not completely straightforward. But you'll look to case law to see what has been considered objectively reasonable in your jurisdiction.

   And then subjectively offensive. So this refers to meaning that the employee in question actually did find the conduct abusive. Good case on that Reeves v. C.H. Robinson Worldwide, 594 F.3d 798. That is from the Eleventh Circuit. So again, here, if an employee is, they're not bothered by it at the time, maybe something goes wrong with their employment. And then later they're trying to claim, with the subjectively reasonable requirement. Probably by the time that you're in litigation, a plaintiff is going to be saying, of course this was subjectively offensive. And of course I found it offensive there. And so that's just going to be one of those other facts that you're going to have to flush out in discovery. Looking at emails again, fact witnesses, the coworkers, other things like that.

   So other common defenses, there is another one... So other common defenses, and we briefly touched on this before, but when it is coworker harassment that the employer did not know nor should have known about the harassment. And the employer took prompt remedial action. So again, we're not talking about supervisors here, but it's just co-workers, maybe some people joking around. One person thinks it has gone too far. And then that's when the employer becomes notified.

   Then what did the employer do in response to finding out that there was inappropriate behavior going on in the workplace? And again, if there is not the actual knowledge, if an employer is denying that a plaintiff can still prove that they should have known about the harassment. And again, that's just going to depend on the facts of your case, but just the, I didn't know isn't going to work for employers here.

   Another defense that comes up a lot, you'll hear about the Faragher-Ellerth defense. And these were two cases in 1998 that went up to the Supreme Court that dealt with the issue of supervisors and employers. This is Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742. So some of what will come up with this defense, this can apply when the employer took no tangible adverse employment action. So we're not talking about, again, someone getting terminated here. And it also the definition of supervisor under Title VII, what we're talking about here, this is only when an individual can take tangible employment actions against a victim.

   And then, so here, the employer can defend itself by showing that the employer exercised reasonable care to prevent and also promptly correct the harassing behavior, and that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. And this is why if you've held a few jobs in your life, you've probably signed a handbook acknowledgement. And because that's the big way that employers can show, well, okay, one of the ways that we took reasonable care to prevent any sort of harassment was we maintained a policy, we made sure that all of our employees knew about the policy. Maybe we did training on it.

   And then once we knew about the behavior, we promptly corrected it. And that could even involved terminating the alleged offender. Part of the defense, again, also is the standard that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities. So one thing that could commonly come up here, the employer maintains an employee hotline, or they have an HR open door policy, and there's no record of the employee ever going into complain.

   So they're saying, okay, well, they were making inappropriate jokes for the last three years, but then it something that's going to come up in discovery. Well, why wasn't there a complaint before and so that'll be something that's flushed out or again, that there were some corrective opportunities provided by the employer or any other thing that the plaintiff could have done to otherwise avoid harm. So this is a good defense for employers who are really trying to do the right thing and do take the appropriate actions. And that's important to remember if you are also even just advising clients on how to avoid Title VII Litigation.

   So we've talked a little bit about some of the discovery issues that will come up. Again, harassment policy, did the company maintain it. I've had numerous times where something comes up and everyone's like, sure they have a harassment policy, but it's just an unofficial one. So you have to go on that. So certainly having that in order, that it was distributed to employees that employees knew about it, again, did the plaintiff receive a copy? Is there a handbook acknowledgement? Again, another unfortunate thing that you may find out that HR was out the week that the plaintiff started working and the plaintiff actually never did get the handbook. So they never knew about the 1-800 hotline.

   And what are the reporting procedures? Is it more than just plaintiff has to go talk to their supervisor and the supervisor turned out to be the alleged harasser. And so then there wasn't really a reporting procedure because the plaintiff is not going to go there. So what were the avenues for the plaintiff to report or complain about the discrimination? Were there previous complaints by other employees or claims of discrimination? I mean, this is someone that people are complaining about year after year for making off-color comments or making sexual jokes in the workplace or is this just completely out of the blue, company's never heard of it before.

   And so this could involve, I mean, even discovery into other employees' personnel files, was supervisor disciplined before for the same sort of thing. So this is where you can really get into some high documents, documents that are being exchanged. Also, because management knowledge is so important, there can be a lot of discovery around what management knew or should have known about. Most people aren't going to come out just right away. Just admit that in an answer. So it's going to be something that's discoverable. A lot of times this ends up putting people's emails into question. Were they emailing about this issue, about this individual before? Is again, there any record, or someone just saying, ignore it, he's such a great sales guy, so just tell her to be quiet or keep it between the two of them, something like that.

   And there's probably also going to be discovery on how the employer did handle the situation once they found out about it. Who knew about it? Again, what was the action taken in response to the complaint. Or the way that the employer, if it wasn't a direct complaint, what did they do when they finally heard about this issue? And this is also why you'll see a lot of times in a handbook, a requirement that it's company policy to report something if a supervisor hears about it because that knowledge of a supervisor is going to be imputed over to the company.

   A lot of times people say, well, this employee came to me with this complaint, but they told me they didn't really want anything to happen, so I didn't pass it on. And that can be really problematic in a case like this, because then that's going to satisfy your knowledge requirement. And maybe it wasn't actually someone in HR or someone who is going to do the appropriate thing and fix it, just your sort of rogue supervisor, but unfortunately, that's not going to be much of a defense.

   So now we'll talk a little bit about retaliation claims. And retaliation claims actually made up 55.8 of all EEOC charges filed in 2020. These also tend to be some of the cases that will get past summary judgment more than your underlying discrimination or harassment case. And we'll talk about that a little bit more, but usually they can be a little bit easier to prove. There's not all this maybe like the circumstantial evidence that we were talking about earlier. But again, these are just becoming much more common.

   And again, this one alone, again, over half of all EEOC charges last year. So to bring a claim of retaliation, the plaintiff must show that they engaged in protected activity. First of all, under Title VII, this can also include an employee with a close association like someone's fiance. So even if that individual engages in protected activity. The next element is that the employee has to prove that they suffered an adverse employment action. And under this standard, it's actually different than what would be considered an adverse employment action like we discussed earlier.

   It's a lesser standard for a retaliation case. And so the standards, a reasonable employee would have found the challenged action materially adverse, which in this context means it might have dissuaded a reasonable worker for making or supporting a charge of dis discrimination. And this is from Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53. And that is a 2006 Supreme Court case. Petty slights and trivial annoyances are not going to qualify as actionable retaliation, but again, this is much broader than the adverse employment action standard under the discrimination framework. On the EEOC website, for example, it lists out what are some common materially adverse actions, but this could include something as a denial of a promotion, non-hire, denial of job benefits, a demotion, suspension, discharge, or other actions that could be challenged directly as an employment discrimination.

   Retaliation it's just, again, any employer action that is work related or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person for engaging in protected activity. So, I mean, that's even been extended to, I've seen claims for while someone else, they were awarded more shifts, so they got overtime and so that was an adverse employment action or that someone was forced to work overtime, denial of PTO. Again, it's just a much broader standard.

   And the last element that a plaintiff has to show is that there is a causal connection between the protected activity and the adverse employment action. So probably the biggest thing that you'll look to here when you're looking at this element is the time. When did the employee make the complaint and when did the adverse employment action happen? And there's going to be a lot of case law on this. Again, it might vary a little bit in every jurisdiction, but there's definitely going to be some case law out there on it.

   So temporal proximity, a close temporal proximity can create a rebuttable inference of causation. So what that means is for purposes of summary judgment and getting past summary judgment, if you can say okay, look, we don't have direct knowledge, but everything was fine. I made this complaint about how women were being treated in the workplace. And then a week later I was terminated or a month later I was terminated. So that again, is a really important element. And you may also have someone complained and then three years later, they get terminated. Well, they're going to have to show a lot more, that's probably not going to be enough to show that element.

   So what the plaintiff ultimately has to show in a retaliation case is that there was what's called but-for causation. This applies to private employers and the bigger case that came out on this was University of Texas Southwestern Medical Center v. Nassar. That's 133 Supreme Court 2517. This is from 2013. And again, this is where the Supreme Court held that a plaintiff has the ultimate burden of showing but-for causation not a lower causation standard. That this action would have not happened, but-for the protected activity. So this requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions of the employer.

   So what are some common defenses to your retaliation claims? Well, the biggest ones is first, looking at what the employee considers to be protected activity. Protected activity does not cover all employee complaints. It is not protected activity for Title VII retaliation claims if the conduct complained of did not violate or implicate Title VII. And that's big. I mean, I think I've seen a lot of EEOC charges, people go in, well, I complained. I just didn't like my coworker and then they retaliated against me. It has nothing to do with a protected class or I didn't like how the color of the paint on the walls. Of course there's all sorts of fun examples we could come up with, but again, it has to be protected activity that's implicating Title VII.

   And that might be something that really, again, has to get flushed out in discovery. If the plaintiff's going to say, well, I was complaining about mistreatment. I didn't specifically say gender, and that's not a requirement. But enough to put the employer on notice that there is an issue with the protected class in the complaint. And so again, this protects job applicants or employees from asserting their rights to be free from employment discrimination, including harassment.

   Again, it's certainly something that's very important to have. The only remedy can't be bringing lawsuits or going to the EEOC when there's an issue. So it's very important for employers, I know we've been talking about handbooks and policies a lot, but very important to maintain a very strict anti-retaliation policy, make sure that your supervisors and managers know about it, and just make sure that employees are not being retaliated against.

   So which is another defense that will come up a lot, knowledge here, even if someone complained to HR the decision maker may not necessarily know. So if you've got really good HR and HR gets the complaint, it's investigated, it's handled, then someone down the line makes the decision. But of course that's going to be something that can be discoverable. And we're looking at emails, depositions, et cetera. And again, as I stated before, employees don't have to use legal terminology. I mean, I think if we put that burden on employees, it would probably be too hard in most cases. But then also the complaint can't be too vague to constitute what's protected activity. So again, you really want to look, did they actually put the employer on notice that there could be something under Title VII.

   Something also that comes up a lot, maybe the employee let's say that they're complaining about some sort of different treatment, different pay between gender and it turns out not to be true, not a complete defense. The standard is that the employee had a reasonable, good faith belief that the behavior is or could become illegal. For example, this could be involve complaining about sexual harassment, inappropriate conduct, some inappropriate jokes before it rises to the standard of illegal discrimination under Title VII. So again, it doesn't have to satisfy all the requirements that we were talking about earlier. But just the employee has this reasonable good faith that again, is or could become illegal discrimination.

   And now an employee complaining in bad faith, I mean, that can be a discrimination, sorry, a defense to a retaliation claim. A good example of that, it's something that happens kind of frequently. An employee starts to figure out that they're probably getting terminated. They feel like they're going to be out the door soon. And so then they go in and they complain that they are being discriminated against for X, Y, Z reasons. And that can cause a lot of complication from employers certainly with what we were talking about, the temporal limitation earlier. Again, terminating someone right after they've made a complaint isn't great, but again, on this sort of Hail Mary situation does happen sometimes. So just something else to look out for again, making sure that it was a reasonable, good faith belief.

   Well, that covers what we were going to talk about today. I hope that you are left with a better understanding of what can come up in Title VII Litigation. What are some of the issues that you're going to see? It's certainly a very exciting area of law. And even though we're talking about something that was from '64, that can still almost be a baby law in some respects. And again, it's still constantly changing. I mean, for example, that issue of sexual orientation and gender identity was highly litigated before the Supreme Court decisions. There is a lot of conflicting case law.

   In the Eleventh Circuit, for example, gender identity had been a protected category long before sexual orientation. And I think that we'll just continue to see developments in this area of law. It is particularly interesting because I think it does track societal changes like that. I mean, when you start with the Civil Rights litigation of 1964, I mean, women's rights with the last minute ad, going towards, we were just talking about with sexual orientation cases. I mean, it's really interesting way to sort of track what's happening in society. So I hope that you enjoyed this. Again, hope that you learned a little bit from it. And I also hope that you will take up employment law and maybe litigate some Title VII cases yourself. Thank you so much.