The Equal Employment Opportunity Commission (“EEOC”) recently issued its Employment Guidance on Retaliation (see Related Article). While the EEOC’s Employment Guidance is a useful—albeit lengthy—resource, Campbell Litigation’s Daniel Combs has provided the following article on litigating and defending retaliation claims from a management perspective.
Numerous federal and state statutes—including but not limited to Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans With Disabilities Act (“ADA”), and the Colorado Anti-Discrimination Act (“CADA”)—prohibit employers from retaliating against employees for filing discrimination charges, assisting others in filing charges, or making internal complaints about unlawful discrimination. Retaliation is the most frequently-filed type of claim filed with the EEOC, and the EEOC has made prevention of retaliation and enforcement of retaliation claims among its top priorities and areas of focus. Accordingly, employers should expect the number of EEOC charges and EEOC enforcement actions involving retaliation claims to rise.
Based on EEOC data, retaliation claims accompany nearly half of all employment discrimination and harassment claims. This paper provides a primer regarding the legal framework for retaliation claims, analyzes some of the unique challenges that management faces when defending retaliation claims, and provides practical advice to employers to minimize their exposure to retaliation claims. For an EEOC prospective on the issue of retaliation, employers and counsel should also review the EEOC’s recently-updated enforcement guidance on retaliation claims.
II. Legal Standards Governing Retaliation Claims
A. The McDonnell Douglas Burden-Shifting Framework Applies to Retaliation Claims.
In the absence of direct evidence of retaliation, retaliation claims brought pursuant to the federal anti-discrimination statutes and CADA are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Under McDonnell Douglas, if the plaintiff can establish a prima facie case of discrimination or retaliation, the burden shifts to the defendant to show a legitimate nondiscriminatory or non-retaliatory reason for the adverse employment action. . . . If the defendant meets this burden, the burden shifts back to the plaintiff to demonstrate that the defendant’s proffered reason is pretext.
Antonia v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006).
B. Proving a Prima Facie Case of Retaliation.
To prove a prima facie case of retaliation, a plaintiff must show: (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection existed between the protected activity and the materially adverse action. With regard to the causation element, the plaintiff must establish that her protected activities were “a but-for cause of the alleged adverse action by the employer.”
1. Protected Conduct: An Employee’s Internal Complaints of Discrimination Must Be Based on a Good-Faith Belief That Underlying Conduct Is Unlawful, and Must Refer to Unlawful Conduct.
“Protected activity encompasses any opposition by the employee to an employer's unlawful practices or actions.” A wide range of employee conduct is considered protected. An employee’s filing a charge of discrimination with the EEOC or state anti-discrimination agency, or testifying or participating in an EEOC investigation are of course protected. An employee’s complaint or claim of discrimination to a supervisor, manager, or human resources is also protected conduct—regardless of whether the complaint is formal, informal, written, or verbal. To be afforded protection, “[t]he employee need only have a reasonable, good-faith belief that the conduct being complained of is unlawful under Title VII.”
Although an employee need not make a formal claim of discrimination for her conduct to be protected, her complaint or claim must be related in some way to a protected status and a claim of discrimination on the basis of that status. That is, “not every complaint constitutes protected activity.” “Rather, in order to allege protected activity, plaintiff must present evidence showing defendant knew that [the plaintiff’s] concern or complaints related in some way to [a protected status] and that [she] claimed being discriminated against on that basis.”
Consistent with these principles, in a race discrimination and retaliation lawsuit, the retaliation claim did not survive where the plaintiff complained about his supervisor’s alleged unfair treatment of him, where the employee’s complaints “ma[de] no suggestion, implicitly or explicitly, that racial animus motivated such treatment.” In the context of an ADA retaliation case, “a request for accommodation can constituted protected activity supporting a retaliation claim;” however, such request “must make clear that the employee wants assistance for his or her disability” to be considered protected conduct. That is, “an inadequate request for an accommodation—one that does not trigger an employee’s duty to provide a reasonable accommodation or participate in the ‘interactive process’ of finding an appropriate accommodation—can never constituted protected activity.”
2. An Adverse Action Is One That Discourages a Reasonable Employee From Complaining About Discrimination.
The standard to establish an adverse action in a retaliation claim is less demanding than the standard in a discrimination claim. In the 2006 decision Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court clarified that an adverse action for purposes of a Title VII retaliation claim need not be related to the employee’s terms and conditions of employment. Rather, an actionable adverse action is one that might discourage a “reasonable employee” from complaining about discrimination. This standard was intended to “separate significant from trivial harms.” In other words, the Court explained, “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Courts have applied the Burlington Northern standard to ADA and ADEA retaliation claim.
3. Proof of Causation – But-for Causation, Reliance on Temporal Proximity Between Protected Activity and Adverse Action, and Proof of Employer’s Knowledge of Protected Activity.
To establish a causal connection, a plaintiff must present “evidence of circumstances that justify an inference of retaliatory motive.” To prove causation, a plaintiff must establish that her protected activity was “a but-for cause of the alleged adverse action by the employer.”
Courts will infer a causal connection where the employee’s protected activity is closely followed by an adverse action. However, courts in the Tenth Circuit Court of Appeals have held that a causal connection will not be inferred when, without more evidence, the adverse action occurred more than three months after the protected activity. “Although close temporal proximity may be sufficient to satisfy a prima facie case of retaliation, timing alone is insufficient to demonstrate pretext.”
A protected activity cannot bear a causal relationship to an adverse action if the alleged wrongdoer was not aware of the existence of the protected action. Therefore, summary judgment typically is appropriate where the plaintiff cannot show that the decisionmaker knew of the protected activity.
C. Proof of Retaliation at Trial
When a retaliation claim is submitted to a jury at trial, the McDonnell Douglas framework “drops out” of the analysis, and the ultimate question for the factfinder is simply whether the adverse action occurred “because of” the protected conduct.
III. Practical Guidance for Employers
Employers can take steps to minimize their exposure to liability for retaliation claims. The common theme of the underlying tips is for employers to develop and maintain a business culture that does not tolerate discrimination, harassment, or retaliation; and encourages employees to immediately report such unlawful conduct.
1. Ensure That Anti-Discrimination Policies Explicitly Prohibit Retaliation: Employers should review their employee handbooks and policies and consider whether their anti-discrimination policies explicitly prohibit retaliation and set forth a reporting mechanism that gives employees a variety of ways to report unlawful conduct. Employers may benefit by strongly encouraging (or requiring) employees to report unlawful discrimination and harassment, and making it clear that retaliation is not tolerated.
2. Require Anti-Discrimination Training for Supervisors and Managers: Supervisor and management training should include education on retaliation, and should contain explicit instructions to supervisors and managers to report internal complaints of unlawful conduct. The most effective training often occurs on a regular (e.g., at least annual) basis. Documentation of when the training was conducted, who attended and participated in the training, and the topics covered in the training, may benefit an employer that is defending a retaliation claim.
3. Thoroughly Investigate Complaints: Employers also may benefit by documenting their thorough investigations of employees’ complaints of discrimination. Investigators should assure the complaining employee that retaliation is not tolerated, should remind all witnesses of the company’s prohibition on retaliation, and should check in with the complaining employee to determine whether retaliation is occurring.
4. Carefully Scrutinize and Document the Legitimate, Nondiscriminatory Reasons for Adverse Action: Employers overwhelmingly take adverse employment actions based only on legitimate, nondiscriminatory reasons. However, the mere fact that an employer’s motivations were legitimate will not prevent retaliation claims. Employers therefore should carefully scrutinize the business reason for an employment decision, consider whether the decision is consistent with decisions in similar cases, and document the legitimate reasons for personnel actions. Following these steps may greatly minimize the likelihood that an employee will bring a retaliation claim, as well as minimize the likelihood that a retaliation claim will succeed.
Retaliation is a hot-button issue for the EEOC, and retaliation claims present unique challenges for employers. Employers, however, may take common-sense steps to minimize the likelihood that they will face liability for retaliation.
 EEOC, EEOC Enforcement Guidance on Retaliation and Related Issues, (available at: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm)
 Daniel M. Combs is a shareholder attorney with Campbell Litigation, P.C. (http://www.campbell-litigation.com). This article is for educational and informational purposes only and does not contain legal advice.
 42 U.S.C. § 2000e-3(a) (2016).
 29 U.S.C. § 623(d) (2016).
 42 U.S.C. § 12203(a) (2016).
 C.R.S.A. § 24-34-402(e)(IV) (2016).
 https://www.eeoc.gov/eeoc/newsroom/release/2-11-16.cfm (last assessed Oct. 14, 2016).
 P. David Lopes and Mary O’Neil, The EEOC’s Top Ten Litigation Developments (Five Year Retrospective Edition), Equal Employment Opportunity Commission (Aug. 29, 2016) (Denver, Colo.).
 The EEOC recently issued an updated enforcement guidance on retaliation claims. The enforcement guidance is available at
 https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm (last assessed Oct. 16, 2016).
 “Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption.” Hall v. U.S. Dep't of Labor, 476 F.3d 847, 854 (10th Cir. 2007); see West v. New Mexico Taxation & Revenue Dep't, 757 F. Supp. 2d 1065, 1097 (D.N.M. 2010) (“In the absence of direct evidence, courts apply the burden-shifting analysis established in [McDonnell Douglas]).
 Antonia v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006) (Title VII and 42 U.S.C. § 1981 retaliation claims analyzed under McDonnell Douglas); Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012) (ADEA retaliation claim analyzed under McDonnell Douglas); Rodell v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *8 (D. Colo. Sept. 30, 2015) (CADA retaliation claim analyzed under McDonnell Douglas); Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186–87 (10th Cir. 2016) (ADA retaliation claim analyzed under McDonnell Douglas).
 Antonia, 458 F.3d at 1181.
 Samoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008).
 Univ. of Texas Sw. Med. Ctr. V. Nassar, 133 S. Ct. 2517, 2538 (2013).
 James v. James, 129 F. Supp. 3d 1212, 1227 (D. Colo. 2015), aff'd, No. 15-1403, 2016 WL 4041402 (10th Cir. July 26, 2016).
 42 U.S.C. § 2000e-3(a); Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1187 (10th Cir. 2016 (“Certain employee actions, such as filing an EEOC complaint, are indisputably protected activities under the ADA”).
 Phelps v. Sears Roebuck and Co., No. 90-4133, 1993 WL 523202, at *1, 5 (10th Cir. 1993) (An informal complaint to management qualifies as a protected activity).
 James, 129 F. Supp. 3d at 1227 (citing Love v. Re/Max of Am., Inc., 738 F.2d 383, 385 (10th Cir.1984)).
 See, e.g., Crumpton v. St. Vincent’s Hosp., 963 F. Supp. 1104, 1119 (N.D. Ala. 1997).
 Carter v. Meridian Automotive Sys., Inc., 368 F. Supp. 2d 1130, 1140 (D. Kan. 2004) (internal quotation omitted).
 James, 129 F. Supp. 3d at 1227.
 Foster, 830 F.3d at 1188.
 See, e.g., Madock v. McHugh, No. CIV.A. ELH-10-02706, 2011 WL 3654460, at *26 (D. Md. Aug. 18, 2011), aff'd, 469 F. App'x 200 (4th Cir. 2012).
 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
 Id. at 64.
 Id. at 69.
 Id. at 68.
 Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. App’x. 85, 90 (2d Cir.2010) (applying Burlington Northern standard to an ADA claim); Galanis v. Harmonie Club of The City of N.Y., No. 13 CIV. 4344 LTS AJP, 2014 WL 101670, at *5 n.5 (S.D.N.Y. Jan. 10, 2014) (“While the Court in Burlington Northern dealt with a retaliation claim under Title VII rather than the ADEA, the same standard governs the analysis under both statutes”).
 Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007).
 Univ. of Texas Sw. Med. Ctr. V. Nassar, 133 S. Ct. 2517, 2538 (2013).
 See Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014).
 Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (“[The Tenth Circuit has] held that a three-month period, standing alone, is insufficient to establish causation”); see also Tabura v. Kellogg USA, Inc., No. 1:14-CV-00014-TC-PMW, 2016 WL 3676221, at *11 (D. Utah July 7, 2016).
 Shaver v. Rottinghaus Co., No. 09-1193-EFM, 2011 WL 3880893, at *18 (D. Kan. Sept. 2, 2011) (emphasis added) (citing Annett v. Univ. of Kansas, 371 F.3d 1233, 1240 (10th Cir. 2004)).
 See Walton v. New Mexico State Land Office, 113 F. Supp. 3d 1178, 1192 (D.N.M. 2015).
 Gilkey v. ADT Sec. Servs., Inc., No. 11-1369-JAR, 2013 WL 789076, at *5 (D. Kan. Mar. 1, 2013), aff'd, 519 F. App'x 516 (10th Cir. 2013).
 Vialpando v. Johanns, 619 F. Supp. 2d 1107, 1112 (D. Colo. 2008) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000)).