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Recent Developments in Retaliation Law and Resulting Implications for the Federal Sector

The "Recent Developments in Retaliation Law and Resulting Implications for the Federal Sector" was originally published in The Colorado Lawyer, January, 1999 and was written by Marisa L. Williams and Rhonda Rhodes.

Table Of Contents


Retaliation Claims Defined

Ultimate Employment Action Circuits

Material Terms and Conditions Circuits

Liberal Approach

EEOC Approach


End Notes


Whether one practices employment law in the private or the federal sector,(1) there can be no doubt about it: retaliation law is the new frontier in the employment discrimination arena. While sex and race discrimination claims still exceed the number of retaliation claims filed in both sectors, retaliation claims have surpassed every other type of discrimination claim, including disability claims.(2)

According to statistics published by the Equal Employment Opportunity Commission ("EEOC"), private sector retaliation claims have more than doubled in volume over the past several years, reaching more than 18,000 claims by the end of 1997.(3) The federal sector, by comparison, averaged more than 11,000 retaliation claims between 1993 and 1995.(4) Although statistics are not yet available for 1997, federal sector retaliation claims have continued to grow, numbering nearly 14,000 by the end of 1996.(5) The growth in the number of retaliation claims is especially impressive when compared with the statistics for sex and race claims, because the number of complaints for the latter has remained fairly constant over the last few years.(6)

Equally impressive is the divergence in the retaliation precedent developing among the Circuit Courts of Appeals and the EEOC.(7) Because of the unique structure of the federal sector complaint processing system,(8) it is entirely possible that the federal employee and employer will be bound not by the precedent of their Circuit, but by retaliation law as interpreted by the EEOC. Depending on which options the federal employee elects during the administrative processing of his claim, the federal practitioner (and his client) may face a final, nonappealable decision issued by the EEOC.(9) Thus, while the EEOC's guidelines are not controlling upon the courts,(10) they may nevertheless be dispositive in a federal sector case.

Given these trends of increasing claims and diverging authority, it is now imperative that employment law practitioners, whether they work in the private or the federal sector, understand the precedent developing in response to this growing area of the law.

Retaliation Claims Defined

As explained most simply by the EEOC, "[a] person who files a complaint or charge, participates in an investigation or charge, or opposes an employment practice made illegal" by any of the federal employment discrimination laws is protected from retaliation.(11) The protection is not codified in any one statute. Rather, it is found in varying forms in each of the federal employment discrimination statutes. Title VII of the Civil Rights Act of 1964,(12) the Age Discrimination in Employment Act,(13) the Americans With Disabilities Act,(14) and the Equal Pay Act(15) all contain language prohibiting retaliation because an individual has engaged in protected activity. Federal employees are also protected from the types of discrimination (including retaliation) prohibited by each of these statutes, although their protection may arise from a different statute altogether,(16) or may be based upon judicial precedent.(17) In addition, federal employees are protected from retaliation by regulation.(18)

The core requirements for stating a retaliation claim are fairly consistent regardless of the underlying statute. To establish a prima facie case of retaliation, a party must show that: (1) she engaged in protected opposition to discrimination or she participated in a covered proceeding; (2) she suffered an adverse employment action contemporaneously or subsequent to such participation or opposition; and (3) a causal connection exists between the protected activity and the adverse action.(19)

Even a cursory review of retaliation precedent demonstrates each prong of the test has generated a significant body of law defining what will, or will not, suffice in stating a claim.(20) However, it is the second prong of the test, requiring the complainant suffer some adverse employment action, which has caused the most controversy. Courts are struggling with questions such as: "exactly how adverse must the employment action be?" and "how much impact (if any) must the adverse action have on the complainant's employment in order to be actionable?" The answers are not easy because retaliatory adverse actions "can come in many shapes and sizes."(21) Most courts avoid making a "laundry list" of adverse actions which will qualify as retaliation because "unfortunately its forms are as varied as the human imagination will permit."(22) As the courts grapple with these questions, and resolve them on a case by case basis, a split among the circuits has developed.

Ultimate Employment Action Circuits

For some time the Fifth and Eighth Circuits have applied a very narrow definition of the term "adverse employment action."(23) These Circuits have held that only "ultimate employment decisions," such as hiring, compensating, promoting, granting leave or firing will support a retaliation claim. In Mattern v. Eastman Kodak Co.,(24) the court held that hostility from fellow employees, theft of the employee's tools, and her resulting anxiety did not constitute ultimate employment decisions and therefore were not adverse employment actions sufficient to support a retaliation claim. The Fifth Circuit stated: "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon these ultimate decisions."(25)

In Ledergerber v. Stangler,(26) the Eighth Circuit rejected as insufficient a plaintiff's claim that the reassignment of her staff caused a loss of status and prestige. The court held that although the transfer may have had a "tangential effect on her employment," since it involved only minor changes in working conditions and no reduction in pay or benefits "it did not rise to the level of an ultimate employment decision intended to be actionable" as a retaliation claim.(27)

Material Terms and Conditions Circuits

The Second, Third, Fourth, and Sixth Circuits do not limit themselves to "ultimate employment actions." They do, however, apply a fairly narrow definition of "adverse employment action," finding employment actions are sufficiently adverse to state a prima facie case of retaliation only if they materially or tangibly affect an employee's terms or conditions of employment. In Garber v. New York City Police Dept.,(28) the Second Circuit held that no matter how unhappy he was over being involuntarily transferred, the plaintiff's transfer was not an adverse action sufficient to support a retaliation claim. In an analysis very similar to the one conducted by the Eighth Circuit in Ledergerber, the court held that absent a change in job description, job title, days and hours worked, salary, benefits, or opportunity for promotion, it could not find the plaintiff's transfer was sufficiently adverse to support a retaliation claim.(29)

In Robinson v. City of Pittsburgh,(30) the Third Circuit held that "unsubstantiated oral reprimands" and "unnecessary derogatory comments" following the filing of a complaint did not rise to the level of an adverse action required for a retaliation claim.(31) Rather, retaliatory conduct which falls short of discharge or refusal to hire must alter "compensation, terms, conditions, or privileges of employment," deprive a party of her employment opportunities, or adversely affect her status as an employee.(32)

In Munday v. Waste Management of North America, Inc.,(33) the Fourth Circuit rejected an employee's claim that she had been subjected to a pattern of retaliatory conduct by her supervisor and peers. The court stated: "In no case in this circuit have we found an adverse employment action to encompass a situation where the employer has instructed employees to ignore and spy on an employee who engaged in protected activity, without evidence that the terms, conditions, or benefits of her employment were adversely affected."(34)

In one of its most recent cases, Birone v. Indian River School, (35) the Sixth Circuit ruled against a plaintiff who claimed retaliation after her employer initiated a sexual misconduct investigation into her conduct. The Court held that the investigation:

cannot form the basis of a retaliation claim, because it did not result in an any disciplinary action against Birone. To constitute an adverse employment action, an act must result in a loss in pay or benefits, a detrimental change in responsibilities, a negative change in the terms and conditions of employment, or some such actual and unfavorable change in job status.(36) Emphasis added.

Despite the language suggesting that a disciplinary action might support a retaliation charge, the court also rejected the plaintiff's claim that her fifteen day suspension was retaliation sufficient to state a claim. In dicta, the court stated that "a fifteen-day suspension probably does not qualify as an adverse employment action either."(37)

Liberal Approach

Not all the circuits have so narrowly defined the adverse employment action requirement. The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have all rejected the "ultimate employment decision" standard followed by the Fifth and Eighth Circuits. Likewise, they have found conduct sufficiently adverse to support retaliation claims when it would appear to fall short of the "material" or "tangible" effect standard followed by the Second, Third, Fourth and Sixth Circuits. For example, in Wyatt v. City of Boston,(38) the First Circuit vacated and remanded a dismissal of a retaliation complaint. The court explained that while retaliatory discharge was clearly prohibited by the law, other employer actions including job evaluations and peer harassment could also fulfill the adverse action requirement.(39) Accord, Yartzoff v. Thomas.(40)

The Seventh Circuit has consistently applied a more liberal definition to the term adverse employment action.(41) In Knox v. State of Indiana,(42) the Seventh Circuit clearly extended the scope of adverse action:No one would question the retaliatory effect of many actions that put the complainant in a more unfriendly working environment: actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services (like secretarial help or a desktop computer), or cutting off challenging assignments. Nothing indicates why a different form of retaliation--namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII does not fall within the statute.

Despite this liberal approach to the adverse action requirement, the Seventh Circuit has recognized that not everything which makes an employee unhappy can be actionable. Previously, the court cautioned that if an employee's unhappiness alone were sufficient to satisfy the adverse action requirement, "the Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial." Williams v. Bristol-Myers Squibb Co.(43)

Likewise, the Tenth Circuit has liberally interpreted the adverse action requirement in its decisions. In Corneveaux v. CUNA Mut. Ins. Group, (44) the court found an adverse employment action based on the fact the employee had to "go through several hoops" in order to obtain her severance benefits. In Jeffries v. State of Kansas,(45) the court held that the retaliation alleged by the employee (verbal interrogation and reprimand, threats to withdraw supervision and not renew her contract) was sufficient to constitute adverse employment action although it did not actually have an adverse impact on the terms and conditions of her employment. Rejecting any requirement of materiality, the Tenth Circuit declared: "this court takes a case-by-case approach to determining whether a given employment action is adverse."(46) The court then held that the atmosphere surrounding the plaintiff after she filed her complaint was sufficient to state a claim for retaliation.(47)

In Gunnell v. Utah Valley State College,(48) the Tenth Circuit expanded the scope of actionable adverse action to include coworker hostility or retaliatory harassment, "if sufficiently severe." While the court did not actually rule upon the coworker hostility claim, it indicated the allegations of harassment were probably not sufficient to support a retaliation claim. The Court stated the allegations against coworkers "generally seem to involve incidents of rudeness . . . given that Title VII neither is a general civility code nor does it make actionable the ordinary tribulations of the workplace."(49)

The Eleventh Circuit held in Wideman v. Wal-Mart Stores, Inc.,(50) that scheduling conflicts, reprimands, a one day suspension, soliciting negative evaluations, and needlessly delaying medical treatment authorization, while short of ultimate employment decisions, were nevertheless sufficient to support a claim of adverse action. In Passer v. American Chemical Society,(51) the D.C. Circuit held that protection from retaliation did not prevent only cognizable employment actions such as discharge, transfer or demotion. The court ruled that canceling a symposium in an employee's honor was a sufficiently adverse action to support a retaliation claim.

EEOC Approach

In a move that is sure to complicate the already conflicting interpretations of the adverse action requirement, the EEOC issued retaliation guidelines on May 20, 1988. In Directive Number 915.003, the EEOC acknowledges the split among the circuits on the issue, declaring that: "[s]ome courts have held that the retaliation provisions apply only to retaliation that takes the form of ultimate employment actions . . . [o]thers have construed the provisions more broadly, but have required that the action materially affect the terms, conditions, or privileges of employment."(52) Yet the EEOC disagrees with all these decisions, and "concludes" that the anti-retaliation provisions should be construed much more broadly than the courts have allowed.(53)

According to the EEOC, any adverse treatment, if it is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity, is prohibited.(54) Although the Directive notes that "petty slights and trivial annoyances are not actionable," it maintains that more significant retaliatory conduct can be challenged, regardless of the level of harm.(55) The EEOC provides several examples for guidance. The first example is very clearly the fact pattern from the case of Munday v. Waste Management,(56):

CP [charging party] filed a charge alleging that he was racially harassed by his supervisor and co-workers. After learning about the charge, CP's manager asked two employees to keep CP under surveillance and report back about his activities. The surveillance constitutes an "adverse action" that is likely to deter protected activity, and is unlawful if it was conducted because of CP's protected activity. (57) Emphasis added.

The EEOC's third example offers a hypothetical "adverse action" which, to the best of the authors' knowledge, has never served as the basis for a claim: a supervisor invites all employees to lunch on a regular basis. The supervisor then excludes CP after she files a discrimination charge. The EEOC concludes that if CP is excluded from lunch because of her charge, that constitutes unlawful retaliation.(58)

While the standard proposed by the EEOC for actionable adverse conduct is clearly far lower than any judicial precedent on the subject, the EEOC reasons that the courts have been applying the wrong standard in such cases; they have been treating retaliation claims like any other type of discrimination. However, argues the EEOC, the anti-retaliation provisions are exceptionally broad, making it unlawful to discriminate against an individual. "This is in contrast to the general anti-discrimination provisions which make it unlawful to discriminate with respect to an individual's 'terms, conditions, or privileges of employment'."(59) Thus, the "retaliation provisions set no qualifiers on the term 'to discriminate,' and therefore prohibit any discrimination that is reasonably likely to deter protected activity."(60) The EEOC opines that even if there were a requirement that the challenged action affect the terms or conditions of employment, retaliatory acts that create a hostile environment would meet that standard.(61)

The EEOC decisions issued since publication of the Directive establish the EEOC is indeed imposing liability for any adverse action, regardless of materiality, if it could possibly deter employees from exercising their rights. For example, in Alston v. United States Postal Service,(62) the complainant alleged that his manager retaliated against him for earlier EEO activity when she refused his request to change his lunch hour for one day so he could march in a parade. The manager offered, and the employee agreed, that he could use vacation time to attend the parade. The EEOC ruled the denial of leave was an adverse action sufficient to support the employee's claim of retaliation.(63)

In Heath v. General Services Admin.,(64) the EEOC found a complainant had established a hostile environment based on reprisal when she alleged a variety of unpleasant actions at work. She claimed a coworker criticized her clothing; coworkers criticized the amount of her EEO activity; people stared at her angrily and did not speak to her; and male employees did not want to eat lunch with her.(65) In its decision, the EEOC relied upon the Supreme Court's declaration in Harris v. Forklift Systems, Inc.,(66) that a hostile work environment must be sufficiently severe or pervasive to alter the conditions of the victim's employment.(67) Applying its new guidelines, however, the EEOC concluded that the complainant did establish a hostile environment based on the above conduct, and that while "petty slights and trivial annoyances are not actionable," conduct which is likely to deter protected activity is actionable.(68)


While retaliation claims are increasing at great speed, and precedent is developing nearly as quickly, courts have yet to articulate a firm definition of "adverse employment action." For practitioners in the federal sector, a definition remains even more elusive as the EEOC and Circuit Courts of Appeals remain divided on the subject. There is simply no way to avoid the conclusion that the standard for liability purposes in the federal sector hinges directly upon the forum in which the complainant ultimately elects to proceed.

End Notes

1. The terms "private" and "federal sector" as used in this article reflect the two different systems administered by the U.S. Equal Employment Opportunity Commission in processing employee discrimination complaints. The private sector process, which encompasses complaints against private employers and state and local governments, usually involves little administrative processing by the EEOC before the complainant receives her "right to sue" letter and proceeds to court. The federal sector process applies to employment complaints against the U.S. Government. This process in quite lengthy, and involves numerous administrative steps before a party may go to court. See infra, note 8. While practioners in both arenas may benefit from the information in this article, the focus is geared to federal sector practice because the administrative nature of these claims renders it more likely these practitioners will soon encounter the issues discussed herein.

2. For private sector charges see "Charge Statistics From the U.S. Equal Employment Opportunity Commission FY 1991 Through FY 1997," available on-line via http://www.eeoc.gov/stats/charges. Compare U.S. Equal Employment Opportunity Commission "Federal Sector Report on EEO Complaint Processing and Appeals by Federal Agencies for FY 1996," p. 29. No federal sector report is available from the EEOC for 1997.

3. See id., "Charge Statistics." See also U.S. EEOC press release issued May 26, 1998 " EEOC Issues Guidance Clarifying Right to Protection Against Retaliation."

4. See Note 1 supra, "Federal Sector" at 29.

5. Id.

6. See Note 1, supra.

7. The United States Supreme Court has denied certiorari in many of the cases discussed herein, and has yet to expressly rule on the issue of adverse employment action. However, the Court's recent sexual harassment decisions, Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), may provide some insight. In these cases, the Court focused on the employment action at issue: tangible employment actions, such as decisions to hire, fire, promote; and intangible employment actions which nevertheless alter the terms and conditions of employment. The Court ruled both can support a claim, but the standard of liability will depend on whether it was a tangible action (strict liability) or a hostile environment claim (permitting a defense).

8. See 29 C.F.R. 1614.101 et seq. The federal sector process requires the following: counseling; an independent investigation; discovery and motions practice; a hearing before an EEOC administrative judge and/or a final agency decision; and various appeals to the EEOC.

9. See 29 C.F.R. 1614.405(b).

10. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).

11. See, e.g., U.S. EEOC "Facts About Federal Sector Equal Employment Opportunity Complaint processing Regulations (29 C.F.R. 1614)," available on-line via http://www.eeoc.gov/facts.

12. Section 704(a) of Title VII, 42 U.S.C. 2000e-3(a).

13. Section 4(d) of the ADEA, 29 U.S.C. 623(d).

14. Section 503(a) of the ADA, 42 U.S.C. 12203(a) and (b).

15. See 29 U.S.C. 206(d). See also section 15(a)(3) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 215(a)(3).

16. For example, the Rehabilitation Act, 29 U.S.C. 791 et seq. is the federal sector equivalent of the ADA, although the distinction is, for purposes of this discussion, one without a difference.

17. See, e.g., Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986)(extending retaliation claims to federal employees under Title VII); Bornholdt v. Brady, 869 F.2d 57, 62 (2d Cir. 1989)(permitting federal employee retaliation claims under ADEA).

18. 29 C.F.R. 1614.101(b).

19. Compare the prima facie case requirements in Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir. 1994)(Title VII retaliation); O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996)(ADEA retaliation); and, Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994)(Rehabilitation Act).

20. See, e.g., Smith v. Columbus Metropolitan Housing Authority, 443 F. Supp. 61 (D. Ohio 1977); Wall v. AT&T Technologies, 754 F. Supp. 1084 (M.D.N.C. 1990); Muehlhausen v. Bath Iron Works, 811 F. Supp. 15 (D. Me. 1993) for "participation" cases. For "opposition" cases see Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318 (D. Mass. 1976); EEOC v. Shoney's, Inc., 536 F. Supp. 875 (D. Ala. 1982); Gonzalez v. Bolger, 486 F. Supp. 595 (D.D.C. 1980). A body of case law also addresses the causation element. See, e.g., Jordan v. Wilson, 649 F. Supp. 1038 (M.D. Ala. 1986)(totality of circumstances test); Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980)(but for causation); Sowers v. Kemira, Inc., 701 F. Supp. 809 (S.D. Ga. 1988)(wholly unrelated test); Love v. RE/MAX of America, Inc.,738 F.2d 383 (10th Cir. 1984)(proximity in time test).

21. See Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996).

22. Id.

23. See Wideman v. Wal-mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998).

24. 104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 118 S. Ct. 336 (1997).

25. Id.

26. 122 F.3d 1142, 1144 (8th Cir. 1997).

27. Id.

28. 1998 U.S. App. LEXIS 20181, *11-12 (2d Cir. 1998).

29. Id. at *7.

30. 120 F.3d 1286 (3d Cir. 1997).

31. Id. at 1301.

32. Id. at 1300.

33. 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 118 S. Ct. 1053.

34. Id.

35. 1998 U.S. App. LEXIS 7603 (6th Cir. 1998).

36. Id. at *11.

37. Id. at *12.

38. 35 F.3d 13, 15-16 (1st Cir. 1994) per curiam.

39. Id.

40. 809 F.2d 1371, 1376 (9th Cir. 1987)(transfers of job duties and undeserved performance ratings can support a retaliation claim), cert. denied, 498 U.S. 939 (1990).

41. See, e.g., McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 482-83 (7th Cir. 1996)(questioning whether the law still requires the retaliatory action to be job-related); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)(emphasizing breadth of the definition of adverse action requirement).

42. 93 F.3d 1327, 1334 (7th Cir. 1996).

43. 85 F.3d 270, 274 (7th Cir. 1996).

44. 76 F.3d 1498, 1507 (10th Cir. 1996).

45. 147 F.3d 1220 (10th Cir. 1998).

46. Id. at 1232.

47. Id.

48. 152 F.3d 1253, 1264 (10th Cir. 1998).

49. Id. at 1265.

50. 141 F.3d 1453, 1455 (11th Cir. 1998).

51. 935 F.2d 322, 331 (D.C. Cir. 1991). While Passer involved an ADEA retaliation claim, the two statutes are identical with respect to the retaliation provisions. Furthermore, based on Passer, the District Court for the District of Columbia has ruled that Title VII retaliation claims can be based on less than an ultimate employment decision, although the adverse action must still have some potential to affect the plaintiff's employment. See Johnson v. Dimario, 1998 U.S. Dist. LEXIS 12678, *4 (D.D.C. 1998)(written reprimand, which can serve as the foundation for future corrective action, is sufficient adverse action to support Title VII retaliation claim).

52. EEOC Directive 915.003 at 8-13.

53. Id.

54. Id.

55. Id.

56. See supra, Note 34.

57. EEOC Directive 915.003 at 8-14.

58. Id.

59. Id.

60. Id.

61. EEOC Directive 915.003 at 8-14.

62. 1998 EEOPUB LEXIS 4893 (1998).

63. Id.

64. 1998 EEOPUB LEXIS 4562 (1998).

65. Id. at *4-5. Complainant also claimed reprisal based on an unfair semiannual performance rating and a coworker screaming at her that the thing she did best was file EEO complaints and had no friends in the office. However, the complainant agreed during the course of the appeal that the agency had in fact responded to these problems appropriately. Id. at *5.

66. 114 S. Ct. 367 (1993).

67. Id. at *11.

68. Id. at *12-13.

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