Preventing Workplace Harassment, Discrimination, and Retaliation

C. C AUSAL C ONNECTION /N EXUS Whether an employee can establish a causal connection between the protected activity and the employer action depends on whether the totality of the circumstances indicates a retaliatory motive. Those factors include, but are not limited to, the timing of the employer’s action in relation to the protected activity and whether the decision maker knew of the employee’s protected conduct. 1. T IMING Courts tend to treat the timing of events differently, depending on how temporally close they are in relation to each other. Where there is a gap in time between the protected activity and the adverse employment action, courts will consider that fact, but not treat it as determinative. Thus, the passage of time between the protected activity and the adverse action is generally not enough by itself to defeat a retaliation claim. But in some situations when the adverse employment action follows immediately after the protected activity, courts have held that the timing alone is enough to find that the two events are causally connected. 2. E MPLOYER K NOWLEDGE To bring a successful retaliation claim, an employee must also be able to demonstrate that the employer—and in particular the decision makers involved in the adverse employment action— knew of the employee’s protected activity. Employer awareness of the protected activity is an essential component of any retaliation claim. Thus, circumstantial evidence will be insufficient to infer a causal link if the employee cannot show the required employer knowledge. In Morgan v. Regents of the University of California , the California Court of Appeals rejected Plaintiff’s retaliation claim because there was no evidence that the decision makers who took the challenged adverse employment action knew of his prior discrimination complaint. 129 Similarly, in Clark County School District v. Breeden , 130 the United States Supreme Court rejected Plaintiff’s retaliation claim, in part because she produced no evidence that the decision maker who ordered the adverse employment action knew of her protected activity.

Case Studies on Employer Knowledge

Reeves v. Safeway Stores, Inc. 131 Reeves alleged that a supervisor initiated disciplinary proceedings against him in retaliation for his previous discrimination complaint. Safeway argued there was no causal connection between the protected activity and subsequent discipline because cause for discipline was separately investigated and the decision to discharge was made by a manager with no knowledge of the employee’s protected activities. The Ninth Circuit reversed the lower court’s ruling in favor of Safeway on the grounds that Safeway failed to show that all material contributors to the decision acted with legitimate, nondiscriminatory motives, and Reeves presented sufficient proof to establish that retaliation by one or more decision makers was a substantial contributing factor in bringing

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 32