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As many employers are now painfully well aware, practically any employee grievance can sow the seeds for a claim of illegal retaliation. The gravamen of a retaliation claim is that the employer has taken some adverse employment action against an individual because he or she opposed illegal discrimination based on national origin, religion, age or other protected classification, or participated in some manner, as a witness or otherwise, in a proceeding to redress such illegal discrimination. Defending against retaliation claims is never easy. It is, to begin with, no defense that the employer did not actually discriminate, as all the employee needs to assert is that she opposed a practice that she reasonably and in good faith believed to be discriminatory. See, e.g., Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125 (2d Cir. 1999). Thus, once an employee has voiced objection to any arguably discriminatory practice of her employer, it is at risk of liability for retaliation if it later takes an employment-related action toward that employee that she views to be unfavorable. Belief about the challenged practice must be reasonable There are, however, some limits to what courts would regard as reasonable. In Clark County School Dist. v. Breeden, 532 U.S. 268 (2001), the U.S. Supreme Court rejected the retaliation claim of a woman who alleged that she had been “punished” after complaining about what she considered inappropriate comments by her male supervisor and a co-worker. Apparently, while Shirley Breeden and the two alleged male miscreants were reviewing job-applicant evaluations, her supervisor read aloud that one applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon,” and stated that he did not know what that meant. In response, the other said “I’ll tell you later,” and, as the court reported, “[b]oth men chuckled.” In rejecting Breeden’s retaliation claim, the court explained that “[n]o reasonable person could have believed that the single incident recounted above violated Title VII’s standard” for sexual harassment. More recently, in Wilson v. Delta State Univ., No. 04-60759, 2005 WL 1939678 (5th Cir. Aug. 12, 2005) (unpublished decision), an employee alleged that he had been fired after complaining that a co-worker promoted over him was not qualified, but was promoted only because she was having an affair with a senior administrator. The court rejected William Wilson’s retaliation claim because discrimination in favor of a paramour “is not sex-based discrimination, as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender.” His apparently good-faith belief to the contrary was thus not reasonable. A recent decision of the California Supreme Court in Yanowitz v. L’Or�al USA Inc., 32 Cal. Rptr. 3d 436 (Calif. 2005), however, expands the scope of retaliation by holding, in effect, that an employee can object to her employer’s alleged discriminatory conduct without actually voicing any objection. The court upheld the retaliation claim of Elysa Yanowitz, a regional manager for L’Or�al, who allegedly suffered a variety of workplace-related adverse actions after she had refused to follow the directive of a higher-ranking executive to fire a saleswoman whom he found “not good looking enough” for L’Or�al. It appears, though, that she never said why she refused. The court nonetheless permitted her claim to proceed because, in its view, deciding otherwise would discourage employees from opposing discrimination. It came to this conclusion while acknowledging that if L’Or�al had presented evidence that attractiveness was a bona fide occupational qualification, then it might not have been reasonable for the plaintiff to believe that the challenged conduct constituted illegal discrimination. The dissent aptly countered that the purpose behind protecting against retaliation is furthered by requiring that employees “overtly” oppose what they consider to be unlawful discrimination, and that “[p]lacing the onus on employers to try to find out whether an employee believes an action is discriminatory and for some reason has chosen not to speak out, does not further this purpose.” Stated otherwise, a retaliation plaintiff cannot, the dissent said, “be a whistleblower without blowing the whistle.” Liability for retaliation frequently depends on whether what the employer has done is substantial enough to constitute an “adverse employment action.” A wide divergence exists among the federal courts as to what standard should be used in judging whether the plaintiff has suffered an adverse action serious enough to support a retaliation claim. The most demanding standard, which is adopted by a small minority of the U.S. courts of appeals, states that only “ultimate employment decisions,” such as hiring, firing, discharging, promoting and compensating, would give rise to actionable retaliation. See, e.g., Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995). Some other circuits, though not limiting retaliation to “ultimate” actions, still require that the plaintiff must have endured a ” ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000). Thus, denial of a favorable assign- ment or a purely lateral transfer would not be sufficient to support a retaliation claim, but a transfer that interfered with career advancement or promotional opportunities would. See De La Cruz v. New York City Human Resources Admin., 82 F.3d 16 (2d Cir. 1996). The standard most commonly used, the one most favorable for employees and the one championed by the Equal Employment Opportunity Commission, is whether there was any adverse treatment that “is reasonably likely to deter employees from engaging in protected activities.” Roy v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). As the Roy court noted, under this standard, “a wide array of disadvantageous changes in the workplace [may] constitute adverse employment actions.” Those “disadvantageous changes” do not need to rise to the level of an “ultimate” employment decision and need not even be “material”; the exclusion from meetings, the loss of a flexible starting time, the denial of secretarial support, an undeserved performance rating or a more burdensome work schedule could be enough. Recently, this “expansive view” of adverse employment actions may have expanded a bit more. In Washington v. Illinois Dep’t of Revenue, 420 F.3d 658 (7th Cir. 2005), the plaintiff claimed that her supervisor had retaliated against her for filing claims of race discrimination by eliminating her flex-time schedule that had allowed her to start work at 7 a.m. and leave at 3 p.m. In a decision by Judge Frank H. Easterbrook, the 7th U.S. Circuit Court of Appeals ruled that retaliation need not always affect the terms or conditions of one’s employment, and “may take the form of acts outside the workplace.” Moreover, the court defined “material” for retaliation purposes as whether it would “dissuade a reasonable worker” from opposing discrimination-the EEOC’s proposed touchstone. It then added, however, that what would not be materially adverse to a “normal employee” could be so for employees with an “idiosyncratic vulnerability.” On that basis, Chrissie Washington’s claim was allowed to proceed: While canceling a 7-to-3 schedule in favor of a standard 9-to-5 schedule was not materially adverse in general, it was “for her” because she needed to be home earlier to care for her Down syndrome son. Temporal proximity and the issue of causal nexus The last hurdle a retaliation plaintiff must overcome is to show that she was treated adversely because of her protected activity. For years, ignoring the fallacy of post hoc ergo propter hoc (after this therefore because of this), courts often would permit the causal nexus between the employer’s knowledge of the protected activity and the allegedly resultant adverse action to be established by “temporal proximity” alone. The Supreme Court addressed this point in Breeden, and ruled that while some lower courts had accepted “mere” temporal proximity as sufficient evidence of causality, the proximity would have to be “very close.” Numerous lower courts have since held that a gap of more than four or five months between the decision-maker’s knowledge and the adverse action does not meet this standard. See, e.g., Diaz v. Weill Medical Center of Cornell Univ., No. 02 Civ. 7380 (S.D.N.Y. Feb. 13, 2004). More recently, the 2d Circuit has even further eased the causality burden. In Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005), the alleged retaliatory acts occurring within the limitations period were not sufficient to establish a retaliation claim. The court nonetheless allowed time-barred instances of alleged retaliation to be used as “relevant background evidence.” It therefore reversed summary judgment against the employee because the time-barred adverse actions “might nonetheless remain admissible at trial and could lead a rational jury to find a causal link between the protected activity and the actionable adverse acts.” Thus, with retaliation, the game may not be over until long after the fat lady has sung. For these reasons, and more, of all the claims that can be brought under employment discrimination law, retaliation may be the hardest to defend. Michael Starr is a partner in the labor and employment group of Washington-based Hogan & Hartson, resident in New York. He can be reached at [email protected]. Adam J. Heft is an associate in that group, also resident in New York. He can be reached at [email protected].

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