Employer Retaliation, Part 4: “Causation” and Establishing the Link Between Protected Activity and Adverse Action
Whether in the employment context or otherwise, cause and effect are the essence of “retaliation.” That is, the party retaliating is acting in response to a perceived offense, slight, or injustice by the other party rather than doing so for the sake of doing so. Accordingly, an adverse decision or act by an employer directed to an employee isn’t retaliatory in a way that violates anti-discrimination laws unless that act or decision was in response to or related to the employee’s engagement in protected activity.
That is what puts “causation” at the center of any employee retaliation claim. To prevail, an employee must prove that the adverse action would not have occurred but for the employer’s retaliatory motive. “Causation” is often the most contested and complex issue in retaliation cases because employers can and do assert that they had non-retaliatory, justifiable reasons for taking the actions they did. The factual challenges involved in proving causation, along with the complex “burden-shifting” legal framework for evaluating and determining the true motivation behind an employer’s adverse action, make this element of a retaliation claim particularly challenging for both aggrieved employees and accused employers.
The Basic Legal Standard: “But-For” Causation
For most federal retaliation claims, including those brought under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court has held that the employee must prove “but-for” causation. In University of Texas Southwestern Medical Center v. Nassar, the Court clarified that, unlike discrimination claims, which may rely on a “motivating factor” standard, retaliation claims require the employee to show that the adverse action would not have occurred but for the employer’s retaliatory motive. This does not mean retaliation must be the sole cause, but it must be a determinative one.
To meet this standard, an employee must demonstrate that the employer was moved to act at least in part because of the employee’s engagement in protected activity and that, absent this retaliatory motive, the employer would not have taken the adverse action, whether termination, demotion, reassignment, or other moves. The “but-for” analysis is also used for many state-law retaliation claims, including those arising under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA).
Employee’s Initial Burden To Prove Causation
Rare is the employer who will easily or obviously confess to a retaliatory motive, or leave a trail of documentary evidence that makes their prohibited reasoning readily apparent. That is why employees often must rely on circumstantial evidence regarding causation. Courts look at a combination of factors to determine whether an employee has raised a plausible inference of causation. These factors include:
Timing and Temporal Proximity
Timing may not be everything when it comes to causation, but it is undoubtedly one of the most common ways employees attempt to show causation. If an adverse action closely follows protected activity, whether by hours, days, or a few weeks, that is often enough to raise suspicions of a connection between the two and establish an initial inference of retaliation.
There is no magical formula to determine how close is too close in terms of temporal proximity, but suffice it to say that if an employee engages in a protected activity on a Friday and is fired the following Monday, that is a much worse look for the employer than if they terminated the employee months later. While timing alone is rarely enough to win at trial, it can keep an employee in the game and be sufficient to survive early dismissal of their claims.
Knowledge of the Protected Activity
Causation also requires proof that the person or persons taking adverse action were aware of the protected activity when they made the allegedly retaliatory decision or action. If the person who made the disciplinary or termination decision was unaware of the employee’s complaint or protected conduct, the retaliation claim often falters. An employee must therefore show that someone with authority to act, either directly or through influence, had actual or imputed knowledge of the employee’s protected activity.
Direct Evidence of Retaliatory Animus
A plaintiff’s dream and a defendant’s nightmare in retaliation cases is direct evidence connecting the protected activity to the retaliatory action. If, between those two bookends, a supervisor sends an email to the employee saying, “Stop complaining about harassment,” or to a colleague indicating, “We can’t have this employee keep going to HR with their allegations of discrimination,” that can be game, set, and match as to causation.
Of course, most evidence of retaliatory intent is far more subtle, such as:
- Sudden criticisms of performance not previously documented.
- Increased scrutiny following protected conduct.
- Expressions of skepticism or annoyance about the employee’s complaint.
- Threats, warnings, or confrontations shortly after protected activity.
Inconsistencies or Shifting Explanations
When an employer asserts a legitimate reason other than retaliation for taking an adverse action, that reason should not shift from week to week or be unsupported by contemporaneous documentation. Employees frequently attack causation by showing that the employer’s proffered explanation for the adverse action is pretextual. Evidence that the employer’s story has changed over time, is not supported by documentation, or conflicts with established policies, can strongly support an inference that retaliation was the real motive.
Comparable Conduct, Different Treatment
Employees may also show causation by identifying similarly situated employees who engaged in comparable conduct but were treated more favorably. For example, if multiple employees missed deadlines but only the employee who filed a discrimination complaint was disciplined, that discrepancy can support causation.
Causation Burden-Shifting
The plaintiff bears the initial burden of showing there is a prima facie case for retaliation by demonstrating that 1) the employee was engaged in a protected activity, 2) the employer took adverse action, and 3) the latter was caused by the former. This burden is light and often satisfied through timing or basic circumstantial evidence.
Under an evidentiary framework established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, once the plaintiff meets their burden to show a prima facie case, the burden then shifts to the employer to articulate a non-retaliatory reason for the action. If the employer does so, then the ball is back in the employee’s court to demonstrate that the employer’s claimed reason is false and that retaliation was the actual reason, thereby bringing causation to the forefront again. If the employee cannot show pretext, the claim generally fails, even if the timing looks suspicious.
When evaluating causation, courts consider the totality of the evidence, rather than isolated fragments. If the whole picture suggests retaliation as a determinative factor, the employee satisfies the causation element, and the employer will need to focus their efforts on challenging other aspects of the employee’s claims.
NEXT: Practical Guidance for Employers