Must “Adverse Employment Action” be Tangible?
A federal judge in Wisconsin recently denied Chrysler Group, LLC’s motion for summary judgment to dismiss an EEOC claim of unlawful retaliation in EEOC v. Chrysler, E.D. Wis. No. 08-CV-1067. The EEOC filed a complaint against Chrysler in late 2009 on behalf of two female employees, Donna Hobbs and Michelle Zahn, who claim that they were retaliated against with threatened termination after they lodged complaints of sexual discrimination against their supervisor.
Title VII of the Civil Rights Act contains an anti-retaliation provision that forbids retaliation against an employee that “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation requires the following elements: (1) the employee engaged in a statutorily protected activity; (2) the employee suffered a materially adverse action by his employer; and (3) a causal link between the two. Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677 (7th Cir. 2010).
Chrysler argued in its motion for summary judgment that Hobbs and Zahn did not experience any adverse employment action because neither “suffered any lost time, neither was tangibly disciplined in any way, lost any benefits or was given a less desirable job….” See February 17, 2011 Decision and Order, p. 15. However, District Judge William F. Callahan explained that “an adverse employment action need not be tangible” and concluded that a reasonable trier of fact could decide that Hobbs and Zahn suffered a materially adverse action based on the threat of termination. Id. See also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64-66 (2006).
This case should serve as a warning to all employers that retaliation claims may be based on more than just termination, lost time, or a loss of pay or benefits. Indeed, non-tangible adverse employment actions, such as threats of termination, may support an EEOC complaint as well.
Furthermore, the court focused on the “context-driven nature of anticipatory retaliation allegations based on threats of termination.” See Decision and Order, p. 16. Judge Callahan emphasized that the manner in which Hobbs and Zahn’s supervisor delivered the threats of termination is determinative in this type of case. For example, he explained that “[i]f [the supervisor] was screaming and pounding his fists on the table while threatening termination, as Zahn and Hobbs testified, this scenario paints a much more hostile and intimidating atmosphere than if [he] delivered his message in a normal tone of voice, as he contends he did.” Id. at 17. Thus, not only should employers be mindful of the wording they elect to use in disciplinary warnings, but they should also be aware of the overall tone and atmosphere created when such a warning is delivered as this may detrimentally affect an employer’s ability to successfully resolve an EEOC claim in the future.