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Nearly all major employment-related legislation, such as Title VII of the Civil Rights Act of 1964 (Title VII), [FOOTNOTE 1] the Americans with Disabilities Act (ADA), [FOOTNOTE 2] the Age Discrimination in Employment Act (ADEA), [FOOTNOTE 3] the National Labor Relations Act (NLRA), [FOOTNOTE 4] the Fair Labor Standards Act (FLSA), [FOOTNOTE 5] and the Employee Retirement Income Security Act (ERISA), [FOOTNOTE 6] contains language prohibiting an employer from retaliating against an employee for exercising statutorily protected rights. The Supreme Court has recognized that “a primary purpose of antiretaliation provisions [is to] [m]aintain unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). This purpose is so important to the operation of these remedial statutes that anti-retaliation provisions have been interpreted to protect former employees. Id. The anti-retaliation provisions present thorny issues when the employee asserts that the employer retaliated by suing the employee. Such scenarios can involve employers asserting counterclaims in response to employment discrimination complaints.
The Supreme Court has recognized that such: [a] lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation. … [B]y suing an employee who files charges … or engages in other protected activities, an employer can place its employees on notice that anyone who engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit. Regardless of how unmeritorious the employer’s suit is, the employee will most likely have to retain counsel and incur substantial legal expenses to defend against it. Furthermore, … the chilling effect of a … lawsuit upon an employee’s willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive relief.

Bill Johnson’s Rests., Inc., v. Nat’l Labor Relations Bd., 461 U.S. 731, 740-41 (1983) (internal citations omitted). The chilling effect of an employer-initiated retaliatory lawsuit is greater when the employee is a low-wage worker who may not have the means to fund a defense. Id. at 741. On the other hand, there are important “countervailing considerations” with respect to prohibiting employers from raising claims against employees who have asserted statutory rights. Id. In particular, the Supreme Court has “recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” Id. Thus, courts must also be mindful of protecting an employer’s constitutional right to have its claims heard. ADVERSE ACTION In the context of allegedly retaliatory litigation, the threshold question is whether the filing of a claim against the employee is governed by statutory anti-retaliation provisions which have been generally interpreted by the courts to prohibit only adverse employment actions. Under Title VII and its sister statutes, for example, courts have held that to prove retaliation the employee must establish “a materially adverse change in the terms and conditions of employment.” Torres v.Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (quoting McKenney v. New York City Off-Track Betting Corp., 903 F.Supp. 619, 623 (S.D.N.Y. 1995)). In contrast to a demotion or discharge, a lawsuit is not traditionally regarded as one of the weapons an employer can use to retaliate against an employee. After all, anyone can sue you, but only your employer can fire or demote you. Some courts, however, have rejected such a crabbed notion of what constitutes an adverse employment action and have held that “less flagrant reprisals [than demotion or discharge] by employers may indeed be adverse.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In Yankelevitz v. Cornell Univ., No. 95 Civ. 4593, 1996 WL 447749, at *4 (S.D.N.Y. Aug. 7, 1996), the court expressly declined “to adopt a rule stating that compulsory counterclaims, or any other legal cause of action, cannot, as a matter of law, constitute retaliation in violation of employment discrimination laws.” Rather, any legal claim that has “some impact on [the employee's] employment or prospective employment” is actionable. Ginsberg v. Valhalla Anesthesia Ass’n, 971 F.Supp. 144, 148 (S.D.N.Y. 1997). The 2nd U.S. Court of Appeals has likewise recognized that “[t]he terminated employee … may have tangible future employment objectives for which he must maintain a wholesome reputation.”Wanamaker, 108 F.3d at 466 (emphasis in original). Thus, the court held, in a case in which the authors’ firm represents the plaintiff, that “retaliatory actions injurious to a plaintiff’s ability to secure future employment are actionable,” Kreinik v. Showbran Photo, Inc., No. 02 Civ. 1172, 2003 WL 22339268, at * 6 (S.D.N.Y. Oct. 14, 2003), as are claims that “shed a negative light on [the employee's] professionalism and ethics” or “mar plaintiff’s professional reputation.” Id. (quoting Yankelevitz, 1996 WL 447749, at *5). In Yankelevitz, for example, the court refused to strike a doctor’s retaliation claim against his former employer, a hospital, where the hospital had counterclaimed that the doctor failed to comply with professional practice procedures. 1996 WL 447749, at * 5. Likewise, in Kreinik, the court let stand an employee’s ERISA-based retaliation claim alleging that the former employer responded to the employee’s original claims with a litany of counterclaims charging the employee with trade name infringement, unfair competition, tortious interference with business relations, misappropriation of proprietary information and breach of contract. 2003 WL 22339268, at *7. The case is currently pending, and by stipulation, the counterclaims and the retaliatory claim are no longer part of the case. The court found that these “counterclaims challenge [the employee's] ability to compete fairly and to exhibit good faith in his business relationships” and therefore, “could impact on [the employee's] personal and professional reputation and on his ongoing efforts to create and maintain his own business.” Id. Accordingly, the filing of legal claims against an employee, whether by asserting counterclaims or by bringing an independent parallel action, or initiating administrative disciplinary proceedings, can give rise to a claim of retaliation so long as the employee can allege that her professional reputation has been damaged. Even the filing of criminal charges can constitute an adverse employment action as “[a] criminal trial … is necessarily public and therefore carries a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.” Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996); see Gonzalez v. Bratton, 147 F.Supp.2d 180, 196 (S.D.N.Y. 2001) (initiating a “felony charge of criminal impersonation of a police officer” against a former police officer, “can be considered an adverse action … that would unquestionably impact negatively on [plaintiff's] subsequent ability to obtain gainful employment”), aff’d, Nos. 01-7826(L), 01-7828(CON), 2002 WL 31317871 (2d Cir. Oct. 16, 2002) (unpublished decision). EXPANSIVE READING At least one court in the 2nd Circuit has suggested that the adverse action need not be employment-related so long as “the retaliation is sufficiently alleged to flow from the [protected activity].” Equal Employment Opportunity Comm’n v Die Fliedermaus, L.L.C., 77 F.Supp.2d 460, 472 (S.D.N.Y. 1999). The court stated, “[F]ear of any type of retaliation can deter an aggrieved person” from engaging in protected activity. Id.; see Passer v. American Chemical Soc’y, 935 F.2d 322, 331 (D.C. Cir. 1991) (reasoning that the anti-retaliation language of the ADEA “does not limit [the law's] reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion”; rather, the employee need show only “that the employer … engaged in conduct having an adverse impact on the plaintiff”) (citation omitted). This expansive reading of the adverse action requirement finds support in the language of most anti-retaliation provisions. For example, Title VII makes it an “unlawful employment practice” for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. � 2000e-2(a)(1). Title VII’s anti-retaliation provision, in turn, makes it unlawful for an employer to “discriminate” against an employee who has opposed an “unlawful employment practice.” 42 U.S.C. � 2000e-3(a). Significantly, the anti-retaliation provision contains no limitation on the type of “discrimination” prohibited and, in fact, expressly omits the qualifying language “with respect to his compensation, terms, conditions, or privileges of employment.” Both the ADA and the ADEA contain similar distinctions between their respective anti-discrimination and anti-retaliation provisions. Compare 42 U.S.C. � 12112(a) (prohibiting disability discrimination “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment”), with 42 U.S.C. � 12203(a) (stating that “[n]o person shall discriminate against any individual” who has engaged in protected activity); compare 29 U.S.C. � 623(a) (prohibiting age discrimination “with respect to [an individual's] compensation, terms, conditions, or privileges of employment”), with 29 U.S.C. � 623(d) (stating that “[i]t shall be unlawful for an employer to discriminate against” any individual engaged in protected conduct). It can be argued, therefore, that as a simple matter of statutory construction the anti-retaliation provisions prohibit a much wider range of employer conduct than do the anti-discrimination provisions. According to the Equal Employment Opportunity Commission (EEOC), for example, “a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.” EEOC Compl. Man. � 8-12; see Equal Employment Opportunity Comm’n v.Outback Steakhouse of Florida, Inc., 75 F.Supp.2d 756, 758 (N.D. Ohio 1999) (“The inclusion of qualifying language in Title VII’s substantive provision, and its exclusion in the anti-retaliation provision, implies that a retaliatory act need not be employment-related in order to be actionable under Title VII.”); but see Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-09 (5th Cir. 1997) (reasoning that the lack of qualifying language in the anti-retaliation provisions “can only be read to exclude … vague harms, and to include only ultimate employment decisions” such as “hiring, granting leave, discharging, promoting, and compensating”). A broad reading of the anti-retaliation provisions would further their purpose in “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346. Whether courts will draw on these linguistic distinctions and take an expansive view of the adverse action requirement remains to be seen. See Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (discussing a split among the circuits regarding the adverse action requirement in retaliation cases). CAUSAL NEXUS Even if the employee is able to establish that the employer-initiated lawsuit or counterclaim constitutes an adverse employment action, she must still establish a causal nexus between the protected activity and the retaliatory suit. Here, timing may be everything. It is well settled that “[t]he causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Lovejoy-Wilson v.NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). Thus, an inference of retaliation will arise where the employer’s “claims could have been asserted earlier, but were instead asserted only after the [employee] had initiated the action seeking to vindicate his federal rights.” Kreinik, 2003 WL 22339268, at *8. What if, however, the employer has legitimate claims against the employee such as claims that the employee has breached a non-competition agreement or has divulged trade secrets? Must the employer forgo its First Amendment right to court access out of fear that its claims will be deemed retaliatory? In the labor context, the Supreme Court has provided employers with some protection. In Bill Johnson’s Restaurants, the Court held that retaliatory employer lawsuits may not be enjoined under the anti-retaliation provisions of the National Labor Relations Act, “regardless of the [employer's] motive, unless the suit lacks a reasonable basis in fact or law.” Id. at 748; cf. BE&K Constr. Co. v. Nat’l Labor Relations Bd., 536 U.S. 516, 536 (2002) (refusing to interpret the NLRA’s anti-retaliation provision to prohibit “all reasonably based but unsuccessful suits filed with a retaliatory purpose”). This rationale has not been extended to other areas of employment law. In Durham Life Ins. Co. v.Evans, 166 F.3d 139, 157 (3d Cir. 1999), the 3rd U.S. Circuit Court of Appeals rejected an employer’s argument that its “filing lawsuit against [a former employee] for breach of her non-competition agreement cannot form the basis of a retaliation claim unless the lawsuit lacked a reasonable basis because of [the employer's] First Amendment right to take disputes to the courts.” The 3rd Circuit found that the Supreme Court’s decision in Bill Johnson’s Restaurants was limited to a “specific, ambiguous provision of the NLRA defining unfair labor practices” and did not extend to retaliation claims brought under Title VII “in part because the prohibition on retaliation is so explicit and the public policy behind the retaliation provision so compelling.” Id. Moreover, although not expressly mentioned by the 3rd Circuit, the anti-retaliation provisions of Title VII and its sister statutes recognize that employers do not always act with a singular purpose. To the contrary, an employer may be liable “when a retaliatory motive plays a part in adverse employment actions … whether or not it was sole cause.” Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (quoting Cosgrove v.Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)). Thus, an employer who legitimately hails an employee into court to pursue meritorious claim may nevertheless be guilty of retaliation if the employer was also motivated by a desire to punish the employee for engaging in protected conduct. That is not to say that the relative merits of the employer’s claims are irrelevant. Rather, in addition to finding of liability for retaliation, an employer risks court-imposed sanctions for filing legal claims against an employee that are entirely without merit. In Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151 E.D.N.Y. 2002), the plaintiff sued her former employer for violations of the ADA and the New York Labor Law. The employer filed counterclaims seeking $500,000 against the employee and alleging harassment, interference with business operations and employee morale, and damage to the employer’s reputation caused by the employee’s allegations raised previously in administrative proceedings. The court ultimately found the employer’s pleadings “utterly devoid of factual allegations to raise a colorable claim” and imposed sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Jacques v. DiMarzio, Inc., 216 F.Supp.2d 139, 142 (E.D.N.Y. 2002). In doing so, the court “admonish[ed] the practicing bar against asserting baseless, retaliatory counterclaims” as “[s]uch claims constitute the type of abusive, harassing practices proscribed by Rule 11.” Jacques, 200 F.Supp.2d at 163. Anti-retaliation provisions play an important role in protecting employees’ statutorily protected rights. And, although employers also enjoy constitutional right to bring suit against their employees, that right does not cloak the employers’ conduct with absolute protection. An employer should therefore carefully consider not only the merits of any claim it may have against a current or former employee, but also how that claim will be perceived. For if the claim is regarded as an attempt to punish the employee for exercising her statutorily protected rights, the employer could subject itself to additional liability. Debra L. Raskin is a partner at Vladeck, Waldman, Elias & Engelhard, which represents unions and employees in labor and employment matters. Valdi Licul is an associate at the firm. The authors’ firm represented the plaintiff in Kreinik v. Showbran Photo, Inc., which is discussed in this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines. ::::FOOTNOTES:::: FN1 42 U.S.C. � 2000e-3(a). FN2 42 U.S.C. � 12203. FN3 29 U.S.C. � 623(d). FN4 29 U.S.C. � 158(4). FN5 29 U.S.C. � 215(a)(3). FN6 29 U.S.C. � 1140.

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