The well-known law firm Ropes & Gray recently faced a trial over charges made by an African-American former associate, alleging that actions taken by the firm after his employment had ended were made in retaliation for his having previously filed race discrimination charges with the Equal Employment Opportunity Commission. The firm successfully obtained summary judgment on all the other claims leveled against it by its former associate — including for defamation and breach of contract.
The original charge of race discrimination also was dismissed because, as the court found, the law firm had legitimate, nondiscriminatory reasons for its actions. But, as often happens in such cases, the defendant nonetheless faced a jury trial on the sole issue of retaliation even though it was found not to have committed the unlawful action that had been initially alleged.
Although Ropes & Gray was likely pleased with a jury verdict in its favor on the one remaining claim of retaliation, it surely would have preferred not to have had a trial at all. The employer’s predicament in Ray v. Ropes & Gray is an object lesson for others. Often, employment discrimination claims deemed meritless spawn secondary claims of retaliation, which are very easy to plead and very hard to defend.
After John H. Ray III had been denied election to the partnership, two Ropes partners agreed to write recommendations for the jobs that Ray (a Harvard Law Review alumnus) was seeking in government and academia. But once he filed his EEOC charge, they refused to follow through. In one instance the stated reason, according to the court’s decision, was that the partner felt that he could no longer in “good conscience” recommend Ray because, as the partner saw it, Ray’s EEOC charge was false. The judge found that these acts were potentially retaliatory and required a jury trial because these partners had previously made positive remarks about Ray’s work.
After the EEOC dismissed Ray’s discrimination claim but found “probable cause” for retaliation due to the partners’ about-face on the reference letters, Ray disseminated the EEOC’s determination letter to others and wrote a letter to the dean of Harvard Law School excoriating the firm. To defend itself (or so it thought), Ropes provided to the Internet legal tabloid Above the Law the EEOC’s initial decision finding “no cause” to believe that Ray had been subject to race discrimination. But this, according to Ray, was a second retaliatory act because the EEOC determination letter contained details about his past performance reviews and an internal investigation into allegations of criminal conduct on his part. Ropes faced trial for retaliation on that conduct as well.
The first lesson of the Ropes lawsuit for other employers is that retaliation is not limited to what the company does or does not do while the person protesting discrimination is still employed. In 1997, the U.S. Supreme Court in Robinson v. Shell Oil established that post-termination activity, such as providing negative references to potential new employers, can constitute illegal retaliatory actions. The Supreme Court further broadened the scope of retaliation seven years ago in Burlington Northern and Santa Fe Ry. v. White. Until then, several appeals courts had ruled that plaintiffs claiming retaliation needed to show that, as a consequence of protected activity (such as complaining about discrimination to a supervisor), they had suffered a “materially adverse” change in their employment, such as discharge, demotion or a failure to be granted a sought-after promotion. For years, the EEOC had taken a much broader view of retaliation.
In Burlington Northern, the Supreme Court sided with the EEOC approach and ruled that a plaintiff alleging retaliation needed to show only that the employer had done something that would likely deter a reasonable individual in the plaintiff’s circumstances from protesting what he perceived to be unlawful discrimination. It is also not required that the underlying claim of discrimination has any merit, only that the plaintiff has a reasonable belief that the employer acted from a discriminatory motive as found in the 2005 Supreme Court decision Jackson v. Birmingham Bd. of Education.
This standard does not remove the plaintiff’s obligation to demonstrate that she actually suffered some materially detrimental consequence — either a penalty or failure to receive a benefit she otherwise would have expected to receive. While merely “trivial harm” or “petty slights” will not be enough for a viable retaliation claim, it is still an ­exceedingly low threshold. The limited showing needed for the “deterrence test” for retaliation was made by Ray with respect to the Above the Law posting of the EEOC’s “no cause” letter. As the court saw it, “[t]he threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.” A third critical element in a retaliation claim is that the employer’s challenged action was motivated as a response to the individual’s objection to perceived unlawful discrimination. But here, too, it does not take much to plausibly allege that because, under well-settled law, “temporal proximity” between the protected activity and an allegedly retaliatory act can be enough to create an issue of fact on the issue of motive, if the other elements of a prima facie case are met. See, for example, the Supreme Court’s 2001 ruling Clark County Sch. Dist. v. Breeden.
A prima facie showing of illegal motivation was not particularly difficult for Ray to establish, at least in the case of the partner who specifically referred to the EEOC discrimination charge in explaining why he would not write a reference letter.
But even without that evidence, the adverse action of not writing a reference letter shortly after the filing of a discrimination complaint was enough to justify a preliminary inference of retaliatory motivation because, as the court found, the partners involved had previously commented favorably on Ray’s work. This underscores the first principle of employment law litigation: No good deed goes unpunished.
The significance of proper management of employees who engage in protected activity is mounting. In 2012, the EEOC reported that retaliation was the most commonly cited claim, appearing in 38 percent of all filed charges. The vast majority of these claims concerned underlying allegations of Title VII discrimination, but thousands more related to other statutory claims for discrimination on the basis of age or disability.
Because timing alone can lead to an adverse inference of retaliation that may require a trial (or an expensive settlement), it is especially critical for employers to avoid any implication of retaliatory motive in these situations. Employers should begin by training managers and human resources staff who may be asked to provide references, transition work, or otherwise provide a message about the circumstances of a departing employee’s exit from their business.
Employers should have a proactive policy in place to protect themselves from falling victim to this trend. They should establish a system articulating clearly that retaliation goes against company policy and should establish a mechanism for promptly identifying protected activity and engaging legal and human resources professionals to analyze subsequent employment actions to prevent other departments from inviting liability.
When people are accused of discrimination on the basis of race, sex, religion or other protected category, there is a natural tendency to disengage from the accuser and to take proactive measures to defend one’s good name.
As the Ropes & Gray case shows, however, that could be a costly mistake. The law of retaliation is structured to ferret out and protect employees against any possible adverse repercussions of their having spoken out against invidious discrimination in the workplace. That underscores a second critical maxim of employment law litigation, which is also illustrated by the Ropes & Gray lawsuit: Do not speak ill of the departed.
Michael Starr is a partner and Katherine Healy Marques is an ­associate in the New York office of Holland & Knight. Starr’s practice focuses on employment and labor relations. He is a litigator in state and federal courts and in agency proceedings. Marques practices in the firm’s litigation section and advises clients on employment matters.