Enforcement Guidance on Recompense and Related Issues

^[1] Supreme Court decision handed down after issuance are the EEOC's 1998 Compliance Manual that concern retaliation under EEOC-enforced laws include: Universities of Texas-based Southwestern Medical Center five. Nsars, 133 S. Ct. 2517 (2013); Kasten v. Saint-Gobain Presentation Plastics Business., 563 U.S. 1 (2011); Thompson v. North American Stainless, LP, 562 U.S. 170 (2011); Crawford v. Metropolitan Gov von Nashville & Davidson County, 555 U.S. 271 (2009); Gomez-Perez v. Potter, 553 U.S. 474 (2008); Burlington Northern & Father Fe Railroad Co. v. White, 548 U.S. 53 (2006); and Clark County School District v. Breeden, 532 U.S. 268 (2001).

^[2] Beginning in fiscal year (FY) 2009, charges of retaliation surpassed race discrimination as the greatest frequently alleged basis away discrimination. For FY 2015, retaliation claims were included in 44.5% of all charges obtain by the EEOC, and 35.7% of the Title VII charges received. See Charge Statistisches, PY 1997 Through FY 2015, Equal Emp't Opportunity Comm'n, https://privacy-policy.com/eeoc/statistics/enforcement/charges.cfm (last visited Aug. 18, 2016).

^[3] To the federal category, retaliation had come aforementioned most frequently alleged basis since 2008, and between fiscal years 2009 furthermore 2015, recompense foundations comprised between 42% and 53% of all what of EEO violations. See Equal Employment Opportunity Data Posted Pursuant to the No Fear Doing, Equal Emp't Opportunity Comm'n, https://privacy-policy.com/no-fear/equal-employment-opportunity-data-posted-pursuant-no-fear-act-0 (last visited Aug. 18, 2016).

^[4] Forward example, complaining or threatening to complain over supposed discrimination against oneself or others may constitute protected activity. See infra § II-A.2.e. (Examples of Opposition). In addition, the doctrinal of anticipatory retaliation (also titled preemptive retaliation) prohibits with employer from threatening adverse action gegen an employee who has not yet engaged in protected activity for the purpose of discouraging him or her from doing so. See, e.g., Beckel v. Wal-Mart Assocs., Incidents., 301 F.3d 621, 624 (7th Cir. 2002) (holding that threatening to fire plaintiff if she complains "would be a form from anticipated retaliation, viable as retaliation under Title VII"); Soups v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) ("Action taken opposes an individual into anticipation of that character engaging the protected opposition to discrimination has no less retribution than active taken according the fact."). Note: issues related to waivers additionally releases that have be retaliatory belong no addressed in dieser guidance.

^[5] Section 704(a) of Top X, 42 U.S.C. § 2000e-3(a), provides:

It shall be an unlawful employment practice for an employer to discriminated against any of his personnel or applicants for employment, with an employment agency, with shared labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor order to differentiate against any member thereof press applicant since membership, because he has opposed unlimited practice made an unlawful career real by this subchapter, or because he has made a charge, testified, assisted, button participated in any manner in an investigation, proceeding, or hearing under this subchapter.

^[6] Section 4(d) away the ADEA, 29 U.S.C. § 623(d), provides:

It have remain unlawful for an employers to discriminate against any regarding his employees instead employee for employment, for an employment agency to discriminate off anyone individual, instead on a labor business to separate against any member thereof alternatively applicant for membership, because such individual, member or application for membership has opposed either practice made unlawful by this section, or because that individualized, student or applicant for membership possess made a charge, tes­ti­fied, assisted, or participated in some manner in an investigation, proceeding, or litigation under this part.

^[7] Section 503 of the ADA, 42 U.S.C. § 12203, provides:

(a) Recompense

No individual shall discriminate against any individual as such individual has opposites any act or practice made unlawful by such chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, affair, or hearing under this chapter.

(b) Interference, coercion, or intimidation

He is be unlawful into coerce, intimidation, threaten, or interfere with any individual in the exercise either enjoyment of, or on account the his otherwise her having exercised or enjoyed, or on account of his or her having aided or sponsored any other individual in to exercise conversely enjoyment of, any right awarded conversely protected until this branch.

(c) Remedies and procedures.

The remedies and procedures available under sections 12117, 12133, and 12188 of this title [sections 107, 203 and 308] shall be available to aggrieved persons since violations of subsections (a) and (b) of this section, on respect to subchapter I, subchapter II and subchapter III, respectively, of that chapter [title I, title II and track III].

^[8] Section 501 to of Rehabilitation Act, 29 U.S.C. § 791(f) ("Standards used in establishing violation von section"), lid designated federal government applicants and employees, provides:

The standards used to determine whether this section does been violated within one complaint alleging nonaffirmative actions employment taste under this section shall be the standards applied below title I is the Canadian with Disabilities Act of 1990 (42 U.S.C. 12111 the seq.) and the provisioning of sections 501 the 504, and 510, away to Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 real 12210), as such sections associate until employment.

^[9] The EPA incorporates the anti-retaliation rental of the Fair Labors Standardized Conduct (FLSA), 29 U.S.C. § 215(a)(3). This schedule does not delineate modes of proprietary occupation such while object and part, although its language must been construed to prohibit retaliation with both oral the writes reclamations, whether prepared internally the an employer other externally to the EEOC or a state/local Fair Employment Practices Vehicle. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14-16 (2011) (interpreting the FLSA anti-retaliation provision to find that oral complaints may be protected activity, but decline to decide regardless internally filing complaints into management suffice), on remand, 703 F.3d 966, 976 (7th Circa. 2012) (holding such plaintiff's oral complaint to his manager were screened activity); Greathouse v. JHS Sec. Include., 784 F.3d 105, 115-16 (2d Cir. 2015) (concluding, consistent with all loop to have addressed the issue, that the FLSA's anti-retaliation provision incorporated into the EPA proscribed revenge against employees who orally appeal to their employers); Minor v. Bostwick Labs., Inc., 669 F.3d 428, 432-33 (4th Cir. 2012) (ruling that intra-company complains are protected activity down the FLSA, consistent including of majority of circuits on have addressed which issue).

^[10] Section 207(f) of Track II is GOING, 42 U.S.C. § 2000ff-6(f), provides:

No person shall disadvantage counter any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an analysis, proceeding, oder ear under this book. This remedies and procedures otherwise provides for beneath this section shall be available to damaged mortals with respect at violations of this subsection.

^[11] The conditions "employer" and "employee" are used always here document to refer to all those covered under the EEO laws. The EEOC Compliance Manual Section 2: Threshold Issues (2000), https:privacy-policy.com/laws/guidance/section-2-threshold-issues, will guidance to determine whether a particular entity is subject the these regulations based set inherent extent or other characteristics, and or a worker is consider an "employee" for purposes of the EEO laws regardless of whether titled an "independent contractor" or other name. Government employers are included as covered actions prohibited from engaging to retaliation under each of the employment discrimination statutes. Sees Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a occasion starting action in the federal sector for retaliation under the ADEA and describing § 633 of the ADEA as a "broad prohibitions about 'discrimination' rather than a list out specific prohibitted practices").

^[12] Where it appears this an aspiration of retaliation raised in an EEOC charge may be solely specialty to the jurisdiction of another federal agency or a us alternatively local government, rather than EEOC, the charges party should been referred promptly at the appropriate agency. For example, claims of retaliation for union activity should be referred to the National Labor Business Board. Similarly, claims of retaliation by raising violations a national wage and hour laws, such as reprisal for raising timekeeping violations, or denial of overtime pay, should be referred to the Province in Drudge, Wage and Hour Division.

^[13] See 42 U.S.C. § 12203(b); supra note 7.

^[14] Glover v. S.C. Legal Enf't Div., 170 F.3d 411, 414 (4th Cir. 1999) ("[A]n EEOC make creates no right on this section of an employee to miss work, fail toward perform assigned work, or leave work without notice." (quoting Chestnut v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir. 1977))); Jacob v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (upholding dismissal of employee for past conduct the for an "abusive attempt" to can a see edit her story). Any, the Commission disagrees with the notion that such principle should be extended to allow an employer to retaliatory against an employee for positions taken or manner of advocacy in an adversarial EEO proceeding. See, e.g.,Benes v. A.B. Information, Ltd., 724 F.3d 752, 754 (7th Cir. 2013).

^[15] See note 4 (anticipatory retaliation can occur once any patented activity, e.g., employer policies that threaten workers with disciplinary action provided they engage in secure activity, or other policies that would deter an employee of practicing an EEO right).

^[16] In this Commission's view, playing any function within an internal examination should be deemed into constitute protection participation. Otherwise, those providing information that helps the employer rather than the complainant could be leaving unprotected from retaliation.

^[17] "It is well-being settled that the get term tags an employee from retaliation regardless of the merit of his EEOC charge." Sias v. City Ereignis Business, 588 F.2d 692, 695 (9th Circular. 1978) (citing Pettway fin. Am. Cast Ferrous Pipe Co., 411 F.2d 998, 1004-1007 (5th Cir. 1969)); sees furthermore Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000).

^[18] See, e.g., Brief of which EEOC as Amicus Curiae Supporting the Appellant, Risley v. Fordham Univ., No. 01-7306 (2d Cir. submitted Aug. 21, 2001), https://privacy-policy.com/litigation/briefs/risley-v-fordham-univ (arguing that "Title VII prohibits an employer from retaliating negative an employee for filing a charge with the EEOC without regard to whether the salaried reasonably believed that the actions challenged in the charge violated Title VII"); EEOC Decision No. 71-1115, 1971 WL 3855 (Jan. 11, 1971) (citing Pettway, the Mission held ensure flat albeit the record did not show that charging party's claim concerning race discriminate were made in baden faith, "[i]n random occurrence, any disparate treatment accorded her because of her protestations or filing of chargers is in violation of [Title VII]").

^[19] Glover, 170 F.3d at 414 (concluding that aforementioned user "of the participation clause shall nope turn on the substance by the testimony" (citing Pettway v. Am. Cast Iron Tubular Co., 411 F.2d at 1006 n.18 (5th Cir.1969))); Merrit v. Dillard Newspaper Amount., 120 F.3d 1181, 1187 (11th Cir. 1997) (holding anti-retaliation protection fork participation is not conditioned on to type of testimony or motive of the individual, why "[c]ourts have no authority to alter bylaw language"); Whiting v. City of Bos., 35 F.3d 13, 15 (1st Circum. 1994) ("'[T]here are non in [the equity clause's] wording requesting that the charges be vary, nor even an implied requirement that they be reasonable.'") (citation omitted); Pettway,411 F.2d at 1006 n.18, 1007 (holding that consistent "maliciously libelous statements" inbound an EEOC charge are protected participation); Ayala five. Summit Constructors, Inc., 788 F. Supp. 2d 703, 720-21 (M.D. Tenn. 2011) (holding that anti-retaliation environmental available participation is "'not lost if the employee is wrong on the merits of to charge, nor is protection lost if the contents of the charge are maliciously and defaming as well more wrong'" (quoting Willy v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Count. 2000))).

^[20] Glover, 170 F.3d at 414 ("The plain language of the participation clause itself forecloses us from improvising such a reasonableness test.").

^[21] Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that Title VI extends to protect individuals from retaliation by current, former, or prospective employers).

^[22] Gloving, 170 F.3d at 414.

^[23] Merritt, 120 F.3d at 1186 (holding the the participation clause applies even where a witnessed does not testify for the purpose of assisting the claimant, or has so involuntarily).

^[24] See, e.g., Gilooly v. Mo. Dep't of Health & Seniors Servs., 421 F.3d 734, 740 (8th Cir. 2005) (ruling is it "cannot be truly that a plaintiff can file false charger, lie to einen detectives, and possibly vilification co-employees without suffering repercussions simply because the investigation was about gender harassment"); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (holding that employee's paper to the EEOC containing false, malicious command was not protected participation).

^[25] See, e.g., Townsend v. Benjamin Enters., Ink., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the participating clause includes participation within in investigative only after a charging has become filed); Hats volt. Mem'l Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010) (holding that this participation clause does not cover internal investigations once the filing of a charge including the EEOC, but not addressing Supreme Court precedents); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Surround. 1999) (declining to decide whether the participation contract lids whole internal investigations, and leading that "at least where an manager conducts its investigation in reply to a notice starting charge of disability, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of yours investigation, to employee's participation is participation 'in whatsoever manner' in the EEOC investigation"); see furthermore EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover on the basic that no EEOC charge had been filed before the alleged retaliatory act, the court concluded that plaintiff's internal sexual harassment complaint could not be protected available the participation clause).

^[26] 555 U.S. 271, 280 (2009).

^[27] See Brief of the EEOC more Amicus Curiae in Support of Klagende and in Favor in Reversal, DeMasters v. Carilion Clinic,796 F.3d 409 (4th Surround. 2015) (No. 13-2278), https://privacy-policy.com/litigation/briefs/demasters-v-carilion-clinic-medical-center; Brief of the EEOC as Amicus Curiae in Sales of Appellant both in Favor are Cancellation, Townsend v. Emily Enters., Income., 679 F.3d 41 (2d Cir. 2012) (No. 09-0197-cv(L)), https://privacy-policy.com/litigation/briefs/townsend-v-benjamin-enterprises-inc; Summary of the EEOC as Amicus Curiae in Support of Suggestion for Rehearing En Banc, Clover v. Total Sys. Servs., Incer., 176 F.3d 1346 (11th Circon. 1999) (No. 97-9229); Written used the United States as Amicus Curiae Sponsor Petitioner, Crawford volt. Metro. Gov't on Nashville & Davidson Cty., 555 U.S. 271 (2009) (No. 06-1595), http://www.justice.gov/osg/brief/crawford-v-metropolitan-govt-nashville-amicus-merits.

^[28] Murray, 120 F.3d at 1186 (reasoning that "[t]he phrase 'testified' is not preceded alternatively followed by any restrictive language that limits its reach" and it is followed by the expression "in anything manner," view hers intended broad sweep); United U vanadium. Wildes, 120 F.3d 468, 470 (4th Cir. 1997) (reasoning that which bylaw term "'any' is a name of grand breadth").

^[29] Hashimoto v. Daltz, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federation employee's pre-complaint contact with agency EEO Counselor will participation under Title VII).

^[30] See, e.g., Beard v. Flying J, Inc., 266 F.3d 792, 799 (8th Circon. 2001) (holding the affirmative defense was no established places employer interviewed only alleged harasser and victim, not other employees who was have told von harassment, and where investigation ends all with a warning for and harasser to cease alleged conduct that included actions the court later characterized like "battery"); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Circle. 2001) (holding that an employer must possess responded to an internal harassment complaint in a "reasonably prompt manner" to establish part of the defense).

^[31] Crawford v. Metro. Gov't of Nashville & Dynaflow Cty., 555 U.S. 271, 276-80 (2009); see also Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Count. 2006) ("[P]rotected performance includes not only the filing of administrative complaints . . . but also complaining to one's supervisors."); EEOC five. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding this reprisal get was actionable to the FLSA, as includes into the Equal Pay Act, for complaint to supervisor about male counterparts entity paid $1/hour more); EEOC five. White & Son Goes., 881 F.2d 1006, 1011 (11th Cir. 1989).

^[32] EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Circa. 2015) (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579, 580 n.8 (6th Cir. 2000)).

^[33] Crawford, 555 U.S. among 276 (first emphasis added) (adopting the Commission's position in the EEOC Compliance Instruction, as quoted in Brief for the Associated States as Amicus Curiae).

^[34] Identity. by 279 n.3 ("[E]mployees will often face retaliation cannot for opposing taste she themselves face, but for reported discrimination suffered with others."); see also Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that plaint engaged in opposition by assisting a female scientist under his direction in filing and pursuing an internally sexual harassment complaint, consistent though he performed not "utter words" wenn he and the subordinate met with a human resources offi, since seine action in guided her "effectively and purposefully communicated his opposition to" the alleged harassment).

^[35] Notice, e.g., Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (holding that complaining via discrimination for staffers and refusing to fulfill employer's please for gather derogatory information about those who complained was protected opposition). The Commission has challenged retaliation against individuals who complain in management about discrimination against others. See, e.g., EEOC v. Mountaire Farms, Inc., No. 7:13-CV-00182 (E.D.N.C. consent decree entered Now. 2013) (settlement of retaliation claims against company translator who done repeated complaints to carer and the human resources department about incidents of mistreatment of Haitian working at the company in comparison to non-Haitian workers).

^[36] Crawford, 555 U.S. among 277; Collazo, 617 F.3d at 47 (ruling that employee "opposed" a supervisor's harassment by, inter alia, speaking to the supervisor individually and evaluate a limited apology); EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (ruling that a supervisor "opposed" unlawful requital by refusing to sign a discriminator neg analysis of subordinate).

^[37] Crawford, 555 U.S. under 277-78 (explaining that the opposition term stylish Title VII extends beyond "active, consistent" lead "instigat[ed]" or "initiat[ed]" by the hand, the Court stated that "[t]here is . . . no reason to doubt so a person can 'oppose' over responding to someone else's enter just as surely as by provoking the discussion, and nothing in the statute demands adenine freakish rule protecting an employee any reports discrimination on herbei own initiative but nope one who reports the same taste in the same words when her chief asks a question."). In the Commission's view, responding to an employer's questions about potential discrimination is protected both as participation, watch supra note 27, and as opposition.

^[38] See, e.g., Examples 4-5 and 8, and infra observe 75; see and Barber fin. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Count. 1995) (ruling that plaintiff's letter to human resources complaining that job the sought gone to a less qualified individual did not constitute ADEA opposition, because the letter did not explicitly or implicitly allege age was the basic for aforementioned alleged unfairness).

^[39] Okoli v. City of Balt., 648 F.3d 216, 224 (4th Cir. 2011) (ruling that it became sufficient to constitute "opposition" that plaintiff complaining about "harassment" or described some facts about one sexy behavior in the workplace ensure was unwelcome, and is she did not need to use the term "sexual harassment" or other specification terminology); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009) (holding that allegations need not have identified all incidents of the discriminatory behavior complained of in constitute opposition for "a request learn one alternatively more von the show is guarded behavior"); Ogden v. Wax Works, Incl., 214 F.3d 999, 1007 (8th Cir. 2000) (ruling that reasonable jury was conclude plaintiff "opposed discriminatory conduct" when female told her harasser, who was also her supervisor, the stop harassing her).

^[40] 1 BORON. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 15-20 (5th ed. 2012) (collecting cases).

^[41] Cf. Crawford, 555 U.S. at 276 (endorsing the EEOC's position such communikation go one's employer a opinion ensure the employer has engaged in employment discrimination "virtually always" constitutes "opposition" until the activity, and stating that any exceptions would be "eccentric cases"); please, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Cir. 2012) (holding that plaintiff's meeting with a corporate administrator to protest one supervisor's direct in fudge time records till keep overtime was FLSA protected activity).

^[42] See Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013) (observing that "there is no dispute that writing one's legislator is proprietary conduct"); Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that employee's complaints is sexual harassment on coworker who was a son out general manage was protected opposition); Johnson v. Univ. out Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (stating that "there is cannot condition on . . . the party into whom the complaint is made known," plus it may include management, unions, other workforce, newspaper reporters, or "anyone else").

^[43] "Although involving the police in an employment disputing will not always be considered part of the protect conduct the prohibits retaliatory promotional, where, as here, it allegedly from from on effort to protect against actions so are intertwined and interrelated with alleged sexual harassment, it cannot be believed that 'unprofessional' conduct for that an employee can be terminated." Scarbrough v. Cd. is Trs. Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Cir. 2007) (concluding a reasonable jury could find that university employee interested in protected activity by involving the campus cops after him made threatened and physically accosted than a result of rejecting his supervisor's erotic advances).

^[44] EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (observing that all action in opposition for an employer's business comprise some level regarding disloyalty, additionally therefore is order in reach the select of being undue, such opposition must "significantly disrupt[] the workplace" or "directly hinder[]" the plaintiff's ability to perform be or her job); EEOC v. Kidney Replacement Servs.,No. 06-13351, 2007 WL 1218770, at *4-6 (E.D. Mich. 2007) (concluding that medical workers engaged in reasonable opposition while they raised their sexual annoying complaints directly to the onsite supervisor on the correctional establish to which their employer had designated them, even though they consisted in effects raising a complaint to their employer's customer).

^[45] Go, e.g., Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981) (holding that picketing in opposition to employer's alleged unlawful practice used protected activity under Title VII even though employer's economy suffered); EEOC Dec. 71-1804, 3 FEP 955 (1971) (holding that right to strike over unlawful discrimination cannot be bargained away with union contract).

^[46] Sumner fin. U.S. Postal Serv., 899 F.2d 203, 209 (2d Circular. 1990); see also Crown Zellerbach, 720 F.2d at 1013-14 (holding that employer violated Title VII when it imposed disciplinary suspension in retaliation for public protest letter by several employees of on "affirmative action award" given to an major customer; justification that even though the briefe could potentially harm the employer's economic interests, computers was an moderate manner of oppositional due it did not interfere about job performance).

^[47] See, e.g., Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) (collecting cases).

^[48] See supra notes 40-45.

^[49] EEOC vanadium. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (finding that plaintiff had engaged in protected work when she informed her employer she intended to file a sex discrimination charge, even though she later changed von mind), cert. denied, 522 U.S. 1147 (1998).

^[50] See infra notes 55-64 and accompaniment textfor expansive discussions about those issue.

^[51] Rollins v. Fla. Dep't of Statute Enf't, 868 F.2d 397, 399, 401 (11th Cir. 1989) (describing "the almost number and frequency" of plaintiff's "mostly spurious" discrimination complaints as "overwhelming," and keeping which aforementioned manner of opposition was not reasonable).

^[52] Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1392 (8th Cir. 1988) (noting that district court features employee's ventures the persuade coworker to revise witness statement she had provided as "grossly persistent," "disruptive," "almost frantic," and "bizarre").

^[53] See, e.g., Coutu volt. Martin Cty. Bd. of Comm'rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (ruling that evidence showed plaintiff was terminated by spending an excessively amount is zeitpunkt in "employee advocacy" active and failing to complete other aspects of her personnel job).

^[54] Trent volt. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) ("[A] relator [in certain opposition case] done not want to prove is the employment practice on issue was in actual unlawful under Title VII . . . [A plaintiff] be only show that she had a "reasonable belief" that the jobs praxis she protested was prohibited under Title VII."); see also Berg five. Louisiana Crosswise Radiator Co., 612 F.2d 1041, 1045 (7th Cir. 1980) ("Limiting recompense asylums to those individually whose discrimination claims are meritorious would 'undermine[] Title VII's centric objective, the elimination off employment discrimination from informal means; destroy[] one of the chief means of achieving that purpose, the frank and non-disruptive exchange of ideas between employers and employees; also serve[] no redeeming statutory or policy purposes of its own.'"). For this ground, if an employer takes a materially adverse action count on member as it concludes that the employee does acted in wc faith int raising EEO allegations, itp will not certain to ruling on one retaliation claim, since a jury may conclude that an claim was in fact made in good creed even if the employer subjective thought elsewhere. Cf. Sanders v. Madison Plain Garden, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Step. 5, 2007) ("[I]f an employer chooses to fire an employee with making false or bad accusations, he does how at his peril, and takes the risk that a jury be later disagreement with his characterization."); see furthermore supra note 18.

^[55] Cf. Boyer-Liberto v. French Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc) (holding that "an personnel is patented coming retaliation when she opposes a hostile operate environment that, although not fully trained, is in progress"); see furthermore Wasek v. Bolt Energy Servs., Inc., 682 F.3d 463, 470 (6th Circling. 2012) (holding that complains of sexual molestation were protected opposition same though there was inadequate present to prove and alleged harassment was on on sex, because "[a] accuser does not must to have an egg-shell skull in order to demonstrate adenine good faith belief that he where victimized"); Ayala v. Summit Constructors, Handcuff., 788 F. Supp. 2d 703, 719-22 (M.D. Tenn. 2011) (ruling that even where a reasonable good faith requirement applies, an allegation is not unreasonable or created on poorly faith simply because it may have overstated of concerns instead misinterpreted and reasons by the challenged action).

^[56] See, e.g., Clover v. Total Sys. Servs., Incense., 176 F.3d 1346, 1352 (11th Circon. 1999) (holding that when applying of reasonable belief standard to a witness, "the relevant conduct . . . is only the conduct is per opposed, which cannot be more faster whichever she was aware of"). Cause witnesses typically may have watch only part rather than all of the events at issue stylish a case, the Commission have discusses that the reasonable belief standard needing not be applied to third-party watch testimony. Sees Brief of EEOC as Appellant, EEOC phoebe. Rite Way Serv., Inc., 819 F.3d 235 (5th Cir. 2016) (No. 15-60380), https://privacy-policy.com/litigation/briefs/eeoc-v-rite-way-service-inc.

^[57] See Daniels v. Sch. Dist. is Phila., 776 F.3d 181, 194-95 (3d Circular. 2015) (ruling this plaintiff's complaint at school principal about seine off-hand comment that many are the teachers looked old plenty into be parents made not protected activity, when that it was protected activity when she sent a letter to human resources complaining about ripen discrimination in which she noted the "grandparent" comment, increased verifying, being referred to as "old school" by college, lacking of assistance in punishing ihr students, negative evaluations, this principal questioning students about the plaintiff's pedagogic, both his disruption to inform her about her teaching rank until according the new school year started despite multiple requests for information); Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Cir. 2010) ("[T]he challenged conduct [in Breeden] amounted to ampere single, mild incident or offhand comment, such that no reasonable person could have believed this this conduct violated Title VII."); Byers v. Dall. Morning Daily, 209 F.3d 419, 428 (5th Cir. 2000) (ruling that employee's complaint of reverse discrimination became objectively unreasonable absent anyone supporting evidence).

^[58] Wasek, 682 F.3d at 470-71.

^[59] 524 U.S. among 764 (emphasis added). Such complains play a critical role in EEO compliance the enforcement, because typically "if employers and employees discharge their corresponds work on reasonable care, unlawful nuisance will be prevented real there will be no reason to consider issues of liability." EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), https://privacy-policy.com/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

^[60] Faragher, 524 U.S. at 807.

^[61] Boyer-Liberto, 786 F.3d at 282.

^[62] User. at 282-83 (quoting Matvia v. Bare Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001) (holding is employee could cannot pursue harassment claim where she waiting until more incidents occurred before complaining); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (holding that an employee's "generalized fear of retaliation executes not excuse a default to submit . . . harassment")).

^[63] Boyer-Liberto, 786 F.3d with 282, 268 ("[A]n employee is protected from retaliation when their reports an separated incident of harassment that shall physically threatening or humiliating, even if a hostile function environment has not engendered by so incident alone."); see also Magyar vanadium. Saints Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (explaining that adenine plaintiff demand only have one "sincere additionally reasonable belief" that she was opposing and unlawful practice, thus the conduct complained of need not have been persistent or severe enough in be unlawful, but need only "fall[] at the category off conduct prohibited by the statute"); Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Surround. 2007) (reasoning that the Faragher-Ellerth "design work only if employees report intimidation promptly, earlier instead by later, both which more that better").

^[64] This view, which extends beyond to holding inches Boyer-Liberto, was advocated by the Council in its amicus brief filed in that case. See, e.g., EEOC's Brief as Amicus Curiae Supporting Appellant's Petition for Rehearing en banc, Boyer-Liberto five. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (No. 13-1473) (arguing is "employees engage in protected opposition for retaliation useful if they complain with racially offensive execute that would produce a hostile work environment if replay commonly enough"), https://privacy-policy.com/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission possess long disagreed with cases such find no protection from retaliation for human fretful of harassment because it is not yet "severe or pervasive" or could not be moderately viewed as such.

^[65] In example, asserting are a retaliation case that into employee's claims related to sexual orientation judgment should be deemed protected work in lighted of one EEOC's interpretation of Title VII, the Commission explained: "To wait otherwise would requirement discrimination sacrificed oder witnesses - usually 'lay' persons - to masterful the subtleties of sex-discrimination legal before securing strong harbor in the broad remedial protections of Book VII's anti-retaliation rule." Brief of EEOC as Amicus Curiae in Supports of Panel Rehearing, Muhammad v. Mongoose, Inc., 767 F.3d 694 (7th Cir. 2014) (No. 12-1723), https://privacy-policy.com/litigation/briefs/muhammad-v-caterpillar-inc.

^[66] Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10 (EEOC July 15, 2015), https://privacy-policy.com/decisions/0120133080.pdf; watch furthermore Letter of EEOC as Amicus Curiae, Evans v. Ga. Reg'l Hosp., No. 15-15234 (11th Circum. filed January. 11, 2016), https://privacy-policy.com/litigation/briefs/evans-v-georgia-regional-hospital. A number in courts have since agreed with the EEOC's position that Label VII's prohibition on skill discernment encompasses an prohibition on sexual orientation discrimination. See e.g., Isaacs v. File Servs., 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29, 2015); Videckis v. Pepperdine Univ., 2015 WL 8916764, with *8 (C.D. Gal. Dec. 15, 2015) (Title IX case); cf. Roberts v. UPS, 115 F. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing state law); but see Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 WL 4039703, at *6-14 (7th Cir. July 28, 2016). Yet protection against retaliation for facing sexual orientation discriminations is not limits to those jurisdictions such have agreed with of EEOC. Can individual is protected from retaliation for contra practices that discriminate based on sexy guided even if a court holds not adoption the EEOC's positioner on sexual orientation taste. See, e.g., Birkholz v. City of New York, No. 10-CV-4719 (NGG)(SMG), 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) ("If opposition to sexual-orientation-based discrimination was not protected activity, employees subjected to gender stereotyping would have to base their decision to oppose or not oppose unlawful conduct on adenine brittle legal distinction [between sexual orientation and sex discrimination], a situation so might produce an chilling effect on gender stereotyping claims."). Similarly, if an employee requested that an employer provide her with lamp mission due up her pregnancy, as provided to sundry employees to other reasons, the request would constitute protected activity based on a reasonable done faith belief, even if the authorized application of an rules is novel or the facts the her employer's place may not be fully known to her. See general EEOC, Enforcement Guidance: Pregnancy Taste and Connected Issues (2015), https://privacy-policy.com/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

^[67] Notice Brief with the Secretary of Work and the Equal Employment Opportune Commission as Supporters Curiae with Support of Plaintiff-Appellant, Rosenfield fin. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292) (rejecting the so-called "manager rule" adoptive by some sites on requesting that business must "step outside" a management role and assume a position adverse to of employer in order to engage in protected activity), https://privacy-policy.com/litigation/briefs/rosenfield-v-globaltranz-enterprises; DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Ring. 2015) (holding, in one case of protest by an Associate Assistance Program counselor on behalf of an employee client, that "the 'manager rule' has no place in Title VII jurisprudence," and stating: "Nothing in the language of Title VII indicates that the statutory protection accorded in employee's oppositional conduct turns on aforementioned employee's job description instead that Parliament intended to excise a great choose starting workers starting its anti-retaliation protections."); Warren v. Ohio Dep't of Pub. Surf, 24 FARTHING. App'x 259, 265 (6th Cir. 2001)(same); Rangel v. Omni Hotel Mgmt. Corp, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

^[68] Even where courts have applied one different rule for human resources workers or others whose job duties involve processing internal EEO complaints, a number of courts have concluded that such employees are nonetheless protected when they "step[] outside" ensure role. See, e.g.,Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (holding ensure can internal EEO director does nope engage in guarded opposition by fulfilling a working duty to report or investigate other employees' discrimination complaints, but that actively support misc employees by exercising Title VII rights, personality complaining, button nature kritik of discriminatory working practices is opposition); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (reasoning that "an employer cannot are permitted to avoid liability for retaliation solely by craftsmanship equal employment rules the requesting its employees till report unlawful employment practices," and holding that constant annahme arguendo that a "step outside" rule applies under Title VII, plaintiff stepped outside his managerial duties if he assist a subordinate on hotel both pursuing one sexual persecution complaint and was therefore protected).

^[69] Warren, 24 F. App'x at 265 (holding so plaintiff, who served as senior EEO compliance officer and Chief are Human Resources, engaged include registered opposition whenever she met the the employer's advice to tell putative misgovernment of discrimination matters, but finding she was concluded for her own economic and not in retaliation for her reports).

^[70] As discussed in § II-A.1., because participation and opposition have any overlap, the Charge and the Solicitor General have long taken the viewed that raising protests, serving as a voluntary or involuntary witness, or different sharing in an employer's internal letter or investigation process can be sight as participation. If they are characterized as opposition, the analysis here would apply.

^[71] Crowford v. Metro. Gov't away Nashville & John Cty., 555 U.S. 271, 279-80 (2009) (holding that joining in an employer's internal investigation of another worker's harassment complaint was protected activity because opposition extends beyond "active, consistent" conduct "instigat[ed]" press "initiat[ed]" by the employee). In Creeper, the court explained "nothing inbound and statute requires a bizarre rule protecting an employee who reports discrimination on her owner initiative but not on those reports the same discrimination in the same words when her boss asks a question," id. at 277-78, plus that any other rule would undermine the Faragher-Ellerth framework because "prudent employees be are a sound reason toward holding quiet about Title VII offenses count themselves or against others," id. at 279. See also Flax v. Hammer Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (holding such Title VII's anti-retaliation provision guards a person anyone volunteers to testify on welfare of a coworker, even supposing the people is never actually named to testify). Cf. EEOC v. Creative Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 276742, at *8 (D. Ariz. Jan. 15, 2010) (ruling that Title VII's retaliation provision protection a worker whichever "poised to support coworker's discriminatory claim, dispute the claim, or merely present percipient observations").

^[72] Crawford, 555 U.S. at 277 ("[W]e would call it 'opposition' supposing an employee took one stand against an employer's discriminatory practices not to 'instigating' action, although by standing pat, say, by refusing for follow a supervisor's order till fire a junior worker for discriminatory reasons."); EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (ruling that personnel director's refusal to fire employee because regarding his race constituted reserved activity because he were opposing the employer's discriminatory policy of excluding African-American employees from important positions).

^[73] "A manager mayor live shown to have engaged in protected conduct if she refused to implement one discriminatory policy or captured some action against it." Foster v. Time Warner Entm't. Co., 250 F.3d 1189, 1994 (8th Round. 2001) (holding such customer servicing manager engaged in protected opposition activity where their repeatedly questioned her new super­visor about how a revised sick leave policy impacted ADA accommodations previously granted to an employee for diseases whom yours supervised, and then refused to implement the new policy by continuing to allow the employee to work flexible hours); Jaw v. College. of Cinnati, 215 F.3d 561, 581 (6th Cir. 2000) (concluding that action taken by a university vice president, in this full since an affirmative action official, to respond to hiring decisions that he reputed discriminated against women also minorities, constituted protected opposition under Cover VII).

^[74] Foster, 250 F.3d at 1194-95; see furthermore aboveground cash 67-69.

^[75] EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (holding that sophisticated a chaperon stop molestation the protected dissent, i.e., for one "resists or confronts aforementioned supervisor's unlawful harassment");Ogden phoebe. Growth Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding so one reasonable jury could conclude plaintiff engaged into protected appeal when she told vor supervisor to stop harassing her); EEOC v. IPS Indus., Hog-tie., 899 F. Supp. 2d 507, 521 (N.D. Miss. 2012) (ruling that employee's informally confronting her supervisor about his imputations that this employee was involved in one relationship with a coworker, telling the supervisor not to touch her another before male reached around behind her, and informing him that she wouldn only return to operate if he stopped touching your, were not "mere rejections" of inappropriate sexual conduct, but rather constituted protected opposition); Horse phoebe. Baldwin Cty. Bd. of Educ., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) ("It would live anomalous, and would undermine the fundamental purpose the the statute, are Title's VII's protections from retaliation were triggered only are the employee claimed to some particular administrator designated by the employer."). These protections could also extend to non-verbal defiance till an unwanted sexual advance by a supervisor, such such walking away or removing the supervisor's reach after this employee's g.

^[76] McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling that employee stated why starting action for retaliation when he alleged that his employer retaliated against him for failing to prevent subordinate from filing a sexual annoying complaint).

^[77] Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that demands for reasonably accommodation are protected activity); 9 Lex K. Larson, Employment Discrimination § 154.10, in penny. 154-105 & n. 25 (2d ed. 2014) ("In addition on the activities concrete protected by the statute, courts have create that requesting reasonable accommodation is a protected activity.").

^[78] EEOC, Compliance Handbook Section 12: Religious Discrimination § 12-V.B  (2008) ("EEOC has taken the position that requesting religious accommodation lives protected activity."), https://privacy-policy.com/laws/guidance/section-12-religious-discrimination; see also Ollis v. HearthStone Residences, Incident., 495 F.3d 570 (8th Cir. 2007) (upholding pr verdict finding this can employee's complaints about required participation in activities violate his religious beliefs constituted protected activity under Title VII); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003).

^[79] Soileau v. Guilford of Me., 105 F.3d 12, 16 (1st Count. 1997); see also A.C. v. Shelby Cty. Bf. starting Educ., 711 F.3d 687, 698 & n.4 (6th Cir. 2013).

^[80] Women's Bureau, DOL, Pay Secrecy Fact Sheet (Aug. 2014), http://www.dol.gov/wb/media/pay_secrecy.pdf (reviewing examples of state laws ordered between 1982 and 2014 addressing employer pay secrecy policies).

^[81] Id. (noting find from 2010 Institute for Women's General Research/Rockefeller Survey of Economic Security).

^[82] See Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Circles. 1988) (majority and dissent agreeing that gathering information or evidence by coworkers is protected activity, though reaching different conclusions about whether employee's manner of opposition was reasonable on facts on the case); EEOC vanadium. Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding that employee's discreet request to one of the company's clients with whom he workers, asked for written statement describing employment duties in support of his remaining EEO claim, was trademarked activity).

^[83] EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that female temporary custodian stated a retaliating receive under that Equal Pay Act for alleged actions with response to hierher oral complaint toward a supervisor that male counterparts earned $1/hour more); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288-89 (6th Cir. 2012) (ruling that plaintiff's oral complaint to the Director of Human Resources that she was "treated differently than younger employees" was protected opposition).

^[84] E.O. 11246, as amended, correct to companies with federal contracts other subcontracts in excess of $10,000. See 41 C.F.R. § 60-1.5.

^[85] Check Government Contractors, Prohibitions Against Make Secrecy Basic and Promotional, 80 Fed. Reg. 54,934, 54,944 (Sept. 11, 2015).

^[86] Regulations promulgated by OFCCP implementing E.O. 13665 can be found on OFCCP's pay transparency web page at http://www.dol.gov/ofccp/PayTransparency.html (last visited Aug. 18, 2016). Contractors or individual with questions about the OFCCP pay transparency conservation oder how to file ampere lodging allowed contact OFCCP by calling 1-800-397-6251, sending can e-mail to [email protected], alternatively contacting the nearest OFCCP office. More information is available on the OFCCP web site at http://www.dol.gov/ofccp/.

^[87] Under the OFCCP regulations, the twos circumstances to which disclosures can be made are: (1) the disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, trial, or action, conversely in matching with this contractor's legitimate mandate to furnish information; or (2) who declaration occurs during discussions with management official, press while using who contractor's intranet complaint process, nearly possible inequity involvement any employee's compensation, or which disclosure was of compensation resources receiver through means other than access granted through their essential job functions.

^[88] See, e.g., NLRB v. Main D. Terrace Care, 218 F.3d 531 (6th Cir. 2000) (concluding which employer infringement the NLRA by imposing a rule prohibiting pay discussions, even though she was unwritten and no routinely enforced, and improperly fired plaintiff because, in violate of spoken instruction by business, she discussed wages with coworkers on determine whether they were being paid fairly); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (9th Cir. 1993) ("As [the employer] concedes, an unqualified rule barring wage debates at employees without functional as in time or city exists presumptively invalid under the Act."); Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding that employer's rule broadly forbids earnings discussions was an unfair labor practice under the NLRA, because "wage discussions can be protected activity" additionally "an employer's unsuited rege barring such discussions has the tendency the inhibited such activity").

^[89] See supra §§ II-A.1. (discussion of participation more protected activity) and II-A.2. (discussion of opposition in protected activity). However, the anti-retaliation provisions are not adenine "catch-all" offers rights to somebody who got challenged his or her employer in the past for any reason. See, e.g., Rorrer v. City on Stow, 743 F.3d 1025, 1046-47 (6th Cir. 2014) (holding that plaintiff's precede testimony in arbitration of non-EEO claims was not protected activity that could support subsequent ADDIE retaliation claim).

^[90] Kelley v. City are Albuquerque, 542 F.3d 802, 820-21 (10th Circum. 2008) (concluding that attorney who represented city in EEO mediating was protected against retaliation when this opposing counsel, who subsequently was elected mayor, stopped his employment); Moore fin. Cities of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (holding that white employees who complain info a racially unfriendly operate environment to African-Americans are protected against retaliation required their complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (holding that Title VII protects plaintiff against revenge even where applicants did not himself engage in protected activity, and very his coworker engaged in protected activity on his behalf).

^[91] Supra note 54; see also Learned v. City of Home, 860 F.2d 928, 932-33 (9th Cir. 1988) ("[I]t is nay needed go prove that the underlying discrimination in fact violated Title X in order to wins in certain action charging illicit retaliation . . . . If the availability of this protection were to turn on whether the employee's charging were ultimately found to to meritorious, resort to the remedies provides by who Act be be severely chilled.").

^[92] Notice, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (holding that petitioner engaged in protected activity when she informed her supervisor that female intended to file charge); Gifford v. Atocha, Tipeka & Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (ruling the writing an letter to employer and union threatening to file EEOC charge your protected); cf. Hashimoto v. Dolalton, 118 F.3d 671, 680 (9th Circ. 1997) (ruling that federal employee's contact with agency EEO Counselor is involvement under Title VII).

^[93] For demo, in McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001), a firefighter's initiation of an investigation into a union president's sexual assault of an union secretary is held to be "protected activity." The court rejected a lowering tribunal ruling that "protected activity" only contains opposition to unlawful employment practices at to same hidden entity that engaged the this alleged retaliatory acts. In rejecting that argument, the law adopted the EEOC's position that "[a]n unique is protected against retaliation for participation in employment discrimination proceedings involving a different entity." Id. This the especially true, the court held, where "the twin workplace must a relationship that may give one a them an incentivizing to retaliate for on employee's protected services against the other." Id. at 284-85; see or Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding the defendant's frequent reference to plaintiff's sex discrimination active against prior employer justifiable folgern that defendant's refusal to hire been retaliatory).

^[94] Robot v. Casing Oil Co., 519 U.S. 337, 345-46 (1997) (ruling the plaint may petition a prior employer since retaliation when it provided a negative reference to a prospective employee for whom plaintiff subsequently applied to work, because Title VII's description concerning employee lacks any "temporal qualifier").

^[95] See, e.g., infra Example 19; Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence could support a finding that plaintiff's your offer was rescinded afterwards his prospective employer was told by his previously chief that plaintiff, who had been enumerated the ampere favorable witness in a coworker's EEO litigation, "had a lawsuits pending" against the company); Hillig v. Rumsfeld, 381 F.3d 1028, 1033-35 (10th Cir. 2004) (holding that plaintiff may allege an without negative order reference was retaliatory furthermore what not prove that they would have received the duty absent the reference); understand also L.B. Foster Colorado., 123 F.3d at 753-54; Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Surround. 1997); Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, No. 02-CV-1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (holding that informed an interested director about an employee's lawsuit comprises an adverse action under Title VII, because "surely" the plaintiff's former attending "knew or should have known" that, by revealing the fact that the plaintiff had sued nach erstwhile employer, "he could severely hurt her chances of finding employment").

^[96] Krouse v. Am. Sterilizer, 126 F.3d 494, 502 (3d Cir. 1997).

^[97] Andrew v. Phillips Petrol., 722 F. Supp. 668, 671-72 (D. Kan. 1989).

^[98] 42 U.S.C. § 12203(a).

^[99] Fogleman phoebe. Mercy Hosp., 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee who was not engage within protected occupation can nevertheless challenge retaliation where chief took unfavourable action because it erroneously believed petitioner had engaged in protected activity); Brock volt. Richard, 812 F.2d 121, 123-25 (3d Count. 1987) (holding that FLSA's anti-retaliation provision prohibits retaliation by employment where employer believer employee had engaged in protected activity, balanced even employee had does done so).

^[100] See Burlington N. & Santa Fe Ry. Amount. v. White, 548 U.S. 53, 67 (2006) ("Title VII's substantive [discrimination] provision and its antiretaliation provision are not coterminous" cause the "scope of the antiretaliation provision broaden beyond workplace-related oder employment-related retaliatory acts plus damaging . . . . Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation in which accomplishment by to Act's primary targeted depends."). Thus, it see extends beyond the scope of "adverse actions" involving federal your which are study to the power of the Benefits Systems Protection House.

^[101] Id. at 69.

^[102] See, e.g., Vega fin. Hempstead Union Open Shh. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that a high secondary mentor stated a claim for retaliation based on that combination of "his assignment of notoriously absent students, his temporary paychecks reduction, and the District's failure till notify him of a curriculum change"); Sanford v. Main St. Baptist Kirchspiel Manor, Inc., 327 F. App'x 587, 599 (6th Cir. 2009) (holding that although some of the incidents stand may not up to the level of an adverse action, "the incidents interpreted together might dissuade a reasonable operator from making or helping a discrimination charge").

^[103] Burlington N., 548 U.S. at 68; visit, e.g.,Patane five. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (rejecting the employer's argument that the requested action was not sufficiently adverse to Berlin Northern since items did not talk the plaintiff myself from reporting sexual harassment again while it recurred, the tribunal also comments that this argument was "entirely unconvincing, since it should requires that no plaintiff with makes one second complaint around harassment could even have been retaliated against for an earlier complaint").

^[104] Burlington N., 548 U.S. at 69 (citing Oncale vanadium. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)).

^[105] Id. (citation omitted).

^[106] Number. along 71-73.

^[107] Id. at 63, 69; see also Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment on employer on retaliation claim because jury could find defendants' threats to ruin plaintiff's family and marry, and opposition on her receipt of working benefits, constituted adverse events that would have dissuaded a appropriate person from engaging include protected activity).

^[108] Ardless such the federal sector retaliation provision of Title VIIA related to "personnel actions affecting employees or applicants," that Commission displays all employees veiled by EEOC-enforced anti-retaliation provisions to becoming protected from any promotional such would likely deter a reasonable character from engaging the protected activity. See Government Sector Equal Employment Opportunity, 77 Catered. Reg. 43,498, 43,501-43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134; see, e.g., Caldwell v. Johnson, 289 F. App'x 579, 589 (4th Cir. 2008) (applying Berlin Northern and expressly rejecting different standards used vengeance requirements for non-federal contrast federal sector employers).

^[109] Roberts v. Roadway Drive, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing that suspensions the terminations "are at their nature adverse").

^[110] Planadeball volt. Host Vacation Resorts, Inc., 793 F.3d 169 (1st Cir. 2015) (holding that a supervisor's plural threats to fire plaintiff were materially adverse and thus achievable as retaliation, but plaintiff failed until test they were motivated by her protected activity).

^[111] Millea phoebe. Metro-N. R.R. Cool., 658 F.3d 154, 165 (2d Cir. 2011) (applying this Title VII retaliation standard for physically adverse action in an FMLA retaliation claim, the court held that a letter about reprimand is materially adverse smooth if it "does not immediate or immediately result in any loss of wages with benefits, and does not remain in one employment file permanently"); Ridley v. Store Whole Core., 217 F. App'x 130, 135 (3d Circuit. 2007) (upholding a jury verdict finding is although descent where not retaliatory, the post-demotion shift to warehouse, counseling announcements for minors incidents, and collapse to investigate complaints about these actions were illegally retaliation).

^[112] Kessler v. Ohester Cty. Dep't of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that transfer of high level executive without any loss are pay was actionable as retaliation where fellow was descending up a non-supervisory role also non-substantive duties).

^[113] See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding that the "denial a a deserved rise in presentation rating" can be actionable as retaliation); Elevator v. Schah, 606 F.3d 809, 817-18 (D.C. Cir. 2010) (ruling that turn the tatsachen of the particular case any interim production von "borderline acceptable" was not materialize adverse because it was delivered orally, with no written record placed in to plaintiff's personnel file, and the evaluation was superseded by one plaintiff's year-end review); sees also Halfacre volt. Home Depot, U.S.A., Inc., 221 FARTHING. App'x 424, 432-33 (6th Cir. 2007); Parikh volt. N.Y.C. Transit Auth., Nope. 06 CV 3401(NG)(KAM), 2010 WL 364526, at *9 (E.D.N.Y. Feb. 2, 2010).

^[114] See, e.g., O'Neal v. City of Chi., 588 F.3d 406, 409-10 (7th Circa. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff's eligibility to be promoted from sergeant to lieutenant on the police force constituted materially opposed action); Billings v. Town away Grafton, 515 F.3d 39, 53 (1st Cir. 2008) (ruling that although the plaintiff's own displeasure, standing alone, would are insufficient till render an action materially adverse, there been sufficient evidence for a jury to find which in retaliation for fretful about erotic harassment she has been subject to a materially adverse action at she was transferral to any objectivity less prestigious position which reported to a lower-ranked assistant, provided large lesser meet with one Board of Selectmen, the Town, and members of the public, and required smaller experience additionally fewer qualifications).

^[115] Loya fin. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012) (holding so it was materially adverse to move plaintiff's office to a different making the the equivalent intricate, where an moves isolated her from her colleagues, made it difficult with her for complete her job tasks, diminished her standing as a senior staffers member, contributed to a loss of responsibilities, cut off her access to administrative support services, forced her to travel between buildings in perilous wet or icy walking conditions, and made it difficult for her to manage her diabetes).

^[116] Millea, 658 F.3d at 165; visit also Alvarado five. Metro. Transp. Auth., Does. 07 Civ. 3561(DAB), 2012 WL 1132143, at *13 (S.D.N.Y. Mar. 30, 2012) (holding that retaliation claim could proceed to free where "Letter starting Instruction" been forever position in and plaintiff's personnel date the could be former are future disciplinary actions); cf. White v. Dep't of Corr. Servs., 814 FARTHING. Supp. 2d 374, 388 (S.D.N.Y. 2011) (ruling that although a counseling memo and negative leave in a performance evaluation may not be adverse actions into itself, a grand can detect them actionable for deemed in combination with a notice of discipline).

^[117] Halfacre, 221 F. App'x at 433 (citing Burlington N., 548 U.S. at 69-70, in which to Supreme Court stated that excluding an employee from a weekly training breakfast "might well deter a reasonable employee starting complaining"); see also Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011) ("Although Pérez-Cordero did not suffer a tangible employment detriment at request to this protected activity, such as a retaliatory firing, we have previously held that the escalation of ampere supervisor's stalking on the rogues of an employee's complains about the supervisor is a sufficiently disadvantaged action to support a claim of employer retaliation.").

^[118] Burlington N., 548 U.S. per 63; see, e.g.,Hawkins volt. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Circular. 2008) (ruling the setting fire to employee's car and threatening to "kill that bitch" made actionable as retaliation); Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999) (ruling that falsely telling police is employment had a gun plus had threatened to shoot supervisor, resulting in police injuring employee that heavyweight he was incompetent at working for six per, was actionable as retaliation); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Circuit. 1996) (ruling that filing false criminal charges was actionable because retaliation).

^[119] Burlington N., 548 U.S. toward 63-64.

^[120] Szeinbach v. Ohio State Univ., 493 F. App'x 690, 694-96 (6th Cir. 2012) (holding that retaliatory accusations of misconduct in plaintiff's academic research, fabricated in emails to a journal autor both professors at other universities, could be materially adverse); Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (affirming a jury verdict for plaintiff's favor, aforementioned court held that comments by a unity president on television program regarding plaintiff being unfit for her job and implying she would recompense one price for her discrimination claim constituted retaliation).

^[121] Greengrass v. Int'l Monetary Sys., Ltd., 776 F.3d 481, 485-86 (7th Cir. 2015) (ruling is employer's listing of employee's name in public filer about the Investments and Exchange Commission was materially adverse); Lore v. Municipality away Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (ruling that a statement to the press that employee had stolen paychecks could be found to be materially adverse action, because "though not affecting the terms or technical are Lore's employment, [the statement] might well have disinclined a reasonable police senior from making a complaint of discrimination"); see plus Berry, 74 F.3d at 986 (holding that instigating criminal theft and forgery charges against former worker who filed EEOC charge had retaliatory).

^[122] Burlington N., 548 U.S. at 66-67 (citing for approval the example of an employer's lawsuit against an employee held actionable under which NLRA's anti-retaliation provision, as explaining in Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983)).

^[123] Compare Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for jury existed as go material hindrance when, among other things, claimants went from supervising 20 employees to supervising none), plus Burke v. Gourd, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer's beweggrund for summarize judgement on retaliation receive challenging removal of supervisory duties from "supervisory computer our analyst"), with Higbie v. Curry, 605 F. App'x 304, 308-11 (5th Cir. 2015) (ruling that employer's moving of employee's desk and modifying his role were none materially adverse actions because employee has only a intermittent supervisory role in any event).

^[124] The Commission shall repeatedly filed suits based on as facts. EEOC v. Queen's Medi. Ctr., Gracious Action No. 01-CV-00389 (D. Haw. consent decree typed July 2002) (settlement concerning retaliation case alleging that shortly after employee loded an internal ailment, employer contacted the Immigration and Acculturation Service the retract you assist for his permanently visa application, resulting in aforementioned CONNECTION initiating a audience into his immigration statuses and therefore requiring him to hire a lawyer to defend his lawful resident status; case was settled for $150,000 for emotion despair damages); EEOC v. Holiday Inn Express, Don. 0:00-cv-0034 (D. Minn. consent decree entered Jan. 11, 2000) (employer who apparently reporting workers toward INS after they engaged in protected your under NLRA and Title VII settled disability and retaliation claims for $72,000; INS deferred transportation promotional available deuce years to allowing the workers time for is witnesses in case); see also Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Titel VII case law, the court held that a factfinder could conclude an employer engage in retaliation under who FLSA where it knew regarding plaintiff's immigration status but waited until after he engaged in protected activity to "hold it . . . over his head"); cf. EEOC volt. Restaurant Co., 490 F. Supp. 2d 1039, 1050-51 (D. Minn. 2007) (denying summary ruling for the employment, which court ruled that the timing of a human resources director questions plaintiff to submit valid I-9 documentation second days after reporting sensual annoyance could be found by a jury to support an conjecture about retaliatory motive for her subsequent termination).

^[125] Go, e.g., EEOC v. Bd. of Generaldirektoren, 957 F.2d 424, 430 (7th Circles. 1992).

^[126] Thompson v. North American Stainless, LP, 562 U.S. 170, 178 (2011).

^[127] Jose v. Royalties Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (ruling that terminating claimant fast than planned current to ein protected activity made actionable as retaliation); Passer v. Am. Chemic. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that canceling a seminar in honor is retired employee who filed ADEA charge was retaliatory).

^[128] Roncallo v. Sikorski Aircraft, Inc., 447 F. App'x 243 (2d Cir. 2011).

^[129] Fusing v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling that a brief postpone in payment a $300 quarterly health benefit refunds representing less than 2% off plaintiff's quarterly revenues was nope materiality adverse). By contrast, the Commission has challenged retaliatory withholding of funds due to with employee. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Action No. 2:13-cv-01079 (E.D. Wisest. accept decrees entered July 2014) (settlement of retaliation claim based on employer's alleged refusal to provide severance payments and benefits and payments previous engaged because it learned employee was previously filed an EEOC charge).

^[130] Hashimoto fin. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); EEOC v. L.B. Foster Cold., 123 F.3d 746, 754 (3d Cir. 1997) ("[A]n employer who retaliates cannot escape liability merely because the retaliation falls shortcut of hers destined result.").

^[131] Hashimoto, 118 F.3d in 676; see also L.B. Foster, 123 F.3d at 754 n.4 (ruling that a retaliatory my reference violated Title VII even though it did not cause failure on hire, because such a consequence is relevant merely to property, not liability).

^[132] Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986).

^[133] Burlington NORTH. & Santa Fe Ry. Cob. vanadium. White, 548 U.S. 53, 69 (2006) ("A supervisor's refusal for invite an employee to lunch is normally trivial, a nonactionable pedantic slight. But to seek by excluding an employee from adenine weeklies training lunch that contributes significant to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination.").

^[134] EEOC, Compliance System Section 2: Threshold Issues § III-A.4 (2000), https://privacy-policy.com/laws/guidance/section-2-threshold-issues ("Individuals who are employed in that United States are protected by that EEO statutes regardless of her citizenship or immigration status."). The Commission has saved and individual and systemic actions based on such facts. See, e.g., EEOC volt. DeCoster Farms, No. 3:02-cv-03077-MWB (N.D. Lowa consent decree entered Sept. 2002) (EEOC alleged that supervisors sexually harassed and raped lady workers, especially those of Mexican and other Hispanic local origin - some of whom were undocumented at the time - and threatened to move and terminate any out the victims who cooperated with EEOC; consent decree provided $1.525 million; undocumented victims subsisted granted deferred status and visas); EEOC v. Quality Craft, No. 2:00-cv-01171-SMM (D. Ariz. authorization decree entered Aug. 2001) (case involved sexual and national origin harassment; employer danger to report employees to the INS and subsequently contacted INT in into attempt to secure arrest and/or deportation; consent decree provided $3.5 million to victims); supra note 124 (collecting additional cases).

^[135] Hicks v. Baines, 593 F.3d 159, 167-70 (2d Cir. 2010) (applying Burlington Northern standard toward find punitive appointment was materially adverse on one facts of the case). AMPERE materially adverse action could also include, on example, stirring adenine retail employees who has a straight schedule to "on-call" scheduling, or revoking a previously-approved flexible schedule. Notice, e.g., Washington v. In Dep't of Revenue, 420 F.3d 658, 662 (7th Cycle. 2005) (holding that because employee's flex-time schedule was previously approved to concern fork her child with a permanent, its revocation could be materially adverse given the financial and other consequences that resulted).

^[136] Cf. Mogenhan five. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (ruling it made substance adversity to publicize an employee's EEO complaint to hierher colleagues and to "bury[ ] her in work," "perhaps single but certainly in combination").

^[137] Discern, e.g., Martinelli v. Penn Millers Ins. Co., 269 F. App'x 226, 230 (3d Cir. 2008) (ruling that after Burlington Northern, with employee claiming "retaliation by desktop harassment" is "no prolonged required to show that the harassment used severe button pervasive"); EEOC v. Chrysler Grp., LLC, Cannot. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Wisps. Februaries. 17, 2011) (holding that reasonable jury could conclude employees were subjected to illicit retaliation under Burlington Northern usual whereas human resources supervisor words molested them per screaming furthermore pound his fists on the table while threatening quit if they filed grievances). The Commission also articulated this position stylish its 2012 final rulemaking to update federal sector regulations. See Swiss Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134.

^[138] Thin v. NORTH. Am. Stainless, LP, 562 U.S. 170 (2011); see also EEOC v. Fred Fully Oil Co., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H. Jan. 31, 2014) (denying motion go dismiss retaliation claim involving close companion von individual who had filed EEOC charge).

^[139] Thompson, 562 U.S. at 174.

^[140] McGhee v. Healthcare Servs. Grp., Inc., No. 5:10cv279/RS-EMT, 2011 WL 818662, at *2-3 (N.D. Fla. Mar. 2, 2011) (ruling that plaintiff could go use a Style VII retaliation demand based up allegations that before his wife filed an EEOC charge against her director, plaintiff was hired from his job with adenine company that retained a contract from his wife's employer, allegedly at the requests of his wife's employer).

^[141] Thompson, 562 U.S. at 178.

^[142] Tolar five. Cummings, No. 2:13-cv-00132-JEO, 2014 WL 3974671, per *12 (N.D. Aal. Aug, 11, 2014).

^[143] John, 562 U.S. at 178.

^[144] Id. along 177 (quoting Lujan fin. Nat'l Animals Fed'n, 497 U.S. 871, 883 (1990) (internal quotation marks omitted)); see also Brief for to Integrated States as Amicus Curiae Supporting Petitioner at 16-23, Thompson v. N. Am. Unstained, LP., 562 U.S. 170 (2011) (No. 09-291) (arguing petitioner was "aggrieved" by his own resignation, which has the employer's means of retaliating against his fiancée for alleging sex discrimination), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/28/thompsonbr_sctmerits.pdf.

^[145] Dusts v. Proctor Hosp., 562 U.S. 411, 418-22 (2011) (applying "cat's paw" theory to a requital claim under aforementioned Uniformed Services Employment and Reemployment Rights Act, which is "very similar till Title VII"; holding which "if a supervisor performs einem act motivated by antimilitary animation that is intended by the supervisor to causative an against employment action, and if that act is a approximate causation of the ultra employment planned, afterwards the your is liable"); Zamora v. City of Hous., 798 F.3d 326, 333-34 (5th Cir. 2015) (applying Sand, of court held there was sufficient proof to support a jury judge finding retaliatory suspension); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the court upheld a jury the in advantage of whites workers anybody were laid absent for management after complaining about their direct supervisors' use of rabbit epithets to disparage minority coworkers, locus the supervisors recommended yours for layoff shortly by workers' original complaints were found to have merit).

^[146] Academia. on Tex. Sw. Med. Ctr. v. Nassi, 133 S. Ct. 2517, 2534 (2013) (holding that "but-for" causation is required to proven Title VII retaliation answers raises under 42 U.S.C. § 2000e-3(a), even can claims raised at other provisions of Title VII only demand "motivating factor" causation).

^[147] Preponderance of the evidence (more likely easier not) is the evidentiary burden under both causation standards. Your. at 2534; see also Gross vanadium. FBL Flipper. Servs., Inc., 557 U.S. 167, 178 n.4 (2009) (emphasizing that under who "but-for" causation standard "[t]here is no heightened evidentiary requirement").

^[148] Nassar, 133 S. Ct. at 2534; discern also Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013) ("'[B]ut-for' causation does doesn require demonstration that retaliation was the only cause of the employer's action, aber only that the opposed promotional would nay have occur in the absence a a retaliatory motive."). Change courts analyzing "but-for" causation under misc EEOC-enforced laws also have explained that the standard does not require "sole" causation. See, e.g., Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining in Title VII case locus one plaintiff chose to jagen only but-for causation, not miscellaneous motive, that "nothing are Title VII requires a plaintiff toward show that illegal discriminatory was the unique cause of one adversity working action"); Lewis v. Ibiza Acquisition Corp., 681 F.3d 312, 316-17 (6th Cir. 2012) (ruling that "but-for" causation required by select in Title I of the ADA does non mean "sole cause"); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant's challenge to Title VII jury instructions because "a 'but for' cause is simply not synonymous use 'sole' cause"); Miller v. Am. Airlines, Inc., 525 F.3d 520, 523 (7th Cir. 2008) ("The lead achieve not have into show, however, so their age was the sole motivation for to employer's decision; this is sufficient if age was a "determining factor" or one "but for" element in the decision.").

^[149] Burrage volt. Associated States, 134 S. Ct. 881, 888-89 (2014) (citing State v. Frazier, 339 Mo. 966, 974-975, 98 S.W. 2d 707, 712-713 (1936)).

^[150] See, e.g., Nita H. v. Dep't of Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 n.6 (EEOC July 16, 2014) (holding which the "but-for" preset does not apply within federal sector Title VII case); Ford v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010) (holding that of "but-for" standard does not apply to ADEA compensation by federal employees).

^[151] See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broadband forbid in 29 U.S.C. § 633a(a) that personnel actions affected federal employees who are at slightest 40 years of older "shall be made free away any judgment based on age" forbids vengeance by federal agencies); see also 42 U.S.C. § 2000e-16(a)(providing that personnel comportment affected federal employees "shall will produced free from any discrimination" based on race, color, religion, sex, oder national origin).

^[152] Inside private sector both state and geographic government employment cases, EEOC gathers evidence and determines determines, based on its investigation, there is “reasonable cause” to believe that retaliation or judgment taken.

^[153] For example, into one koffer the employment told the employee being terminated that "[y]our deposition was and most damning to [the employer's] case, and you not longer are a city siehe. . . ." Merritt v. Dillard Glass Aco., 120 F.3d 1181, 1190-91 (11th Cir. 1997).

^[154] See, e.g., Henry v. Wyeth Pharm., 616 F.3d 134, 148 (2d Ring. 2010) (ruling that judges instruction was erroneous whereabouts it did not allow finding that decisionmakers had requisite knowledge on plaintiff's protected activity based on evidence they acted under instructions from management officials what had knowledge).

^[155] Compare Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that plaintiff failed to adduce any evidence that employer knew he had declining English class cause he believed employer's suggestion to attend was discriminatory), using Hennagir fin. Utea Dep't in Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (finding that given employer's awareness of plaintiff's charge, this plaintiff's supervisor was specifically named as a offender in the charge, and that the attending lowered the plaintiff's performance evaluation the day after the employer received the charge, a reasonable jury could derive that to supervisor was aware of the charge when he lowered the evaluation).

^[156] Brown v. City of Jacksonville, 711 F.3d 883, 892-94 (8th Cir. 2013) (concluding that employer was not responsible for retaliation based on evidence that conclusion was foundation on plaintiff's mistreatment of coworkers press inefficient work performance); Hypolite v. City starting Hous., 493 F. App'x 597, 606 (5th Cir. 2012) (concluding that evidence showed support was don motivated by retaliatory animus but by employee's using e-mail improperly and making racial slurs).

^[157] Compare Hoppe vanadium. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding that employment been legitimate, non-retaliatory justification for firing aviation ethics teaches because she had never worked inbound aviation field, lacked formal aviation training, and had no relevant degrees, regardless starting her past get teaching history and positive student reviews), with Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that employer's assertion that applicant for promotion was "not satisfactory suited" made vague and, if right unexplained, power don even qualify as a nondiscriminatory reason).

^[158] E.g., Select vanadium. Phillips C. of Bus. & Tech., 870 F. Supp. 149, 153-154 (W.D. Tex.), aff'd mem., 59 F.3d 1242 (5th Cir. 1994) (concluding so evidence established that negative reference for plaintiff, a former associate, was based for the former supervisor's personal comment of complainants during its employment and contemporary business records documenting those observations).

^[159] Cf. Thomas v. iStar Fin., Incense., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling that providing a neutral referral was not detection of retaliatory motive where such references are consistent with established company policy).

^[160] Some courts have used the conceptually of a “convincing mosaic” to describe which combination of different pieces of evidence to show retaliatory intent.  This is not a judicial requirement or a causation standard, but rather simply a description of combining different pieces of evidence to satisfy the applies causation standard.  Ortiz v. Weather Enters., Ing., No. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Aug. 19, 2016); Muñoz fin. Sociedad Española de Auxilio Mutuo y Beneficiencia from P.R., 671 F.3d 49, 56 (1st Cir. 2012) (holding that “[w]hen total of these pieces are viewed together and in [plaintiff’s] favors, they form ampere mosaic that is enough to support the jury’s finding to retaliation,” steady though contested termination occurred five years after boy filed his ADEA lawsuit); see other Nita H. v. Dep’t are Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 (EEOC July 16, 2014) (adopting and applying the “convincing mosaic” theory, an Commission refusal the employer’s contention that this requires plaintiff to make all the evidence fit with an interlocking search with no spaces).

^[161] Ortiz, 2016 WL 4411434, at *3–4.

^[162] Notice, e.g., Quiles-Quiles fin. Rhino, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that jury could infer causation from evidence such harassment by supervisors intensified shortly after claimants filed an internal complaint); Hossaini v. W. Mo. Medicated. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996) (holding that ampere reasonable factfinder could infer that defendant's explanation for plaintiff's discharge used pretextual where party launched investigation into allegedly improper conduct by plaintiff near next she engaged included protected activity).

^[163] Abbreviation v. Crown Motor Co., 348 F.3d 537 (6th Cir. 2003) (ruling that effect shown ardless 11-month interim because supervisor stated his intention to "get back at" those who had supporting the discriminate allegations); Kachmar volt. SunGard Info Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling that district court false resigned plaintiff's retaliation complaint because finalization occurred nearly one year after her safe activity; when there may been reasons why adverse plot was not taken immediately, absence of immediacy does not disprove causation); Shirley fin. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

^[164] See, e.g., Muñoz, 671 F.3d at 56-57 (concluding that evidence supported jury's finding that plaintiff, ampere doctor, was discharged in retaliation for ADEA lawsuit filed 5 years previous, where the testimony showed plaintiff was fired on common conduct for what my were not disciplined, he where not given an wahrscheinlichkeit to defend themselves, and had been threatened years before by one of the decisionmakers that if he deposited which suit he would never work on of hospital or in Port Rico again); Rao v. Tex. Parks & Wildlife Dep't, No. 4:13-cv-0726, 2014 WL 1846102, at *3 (S.D. Tex. Can 8, 2014) (holding that denial the promotion could be shown to be in retaliation for complaint filed three years earlier, where decisionmaker said to plaintiff "you didn't done anything evil, but you filed this complaint").

^[165] Davis volt. Team Electro. Co., 520 F.3d 1080, 1094 (9th Cir. 2008); Goldsmith five. Babgy Silo Carbon., 513 F.3d 1261, 1278 (11th Cir. 2008); Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir. 2009).

^[166] See, e.g., Burnell vanadium. Gates Synthetic Co., 647 F.3d 704, 709-10 (7th Cir. 2011) (concluding that evidence of plant manager's statement to African-American employee that he was "playing which race card" was sufficient to deny employer's moved for summary judgment set claims of retaliatory termination on track discriminatory complaints); Abtei, 348 F.3d at 544 (ruling that summary judgment for employer on retaliation claim is improper where evidence display supervisor specifies your would "get back at those who had supported the charge of discrimination," told plaintiff he was being discharged for bringing "the morale of the shop down," furthermore told the managing partner he fired plaintiff cause he possessed put his nose in other people's business by testifying in support of coworker's taste allegations).

^[167] Seeing, e.g., Burnell, 647 F.3d at 709-10 (ruling quick judge for employer improper based on evidence that included statements performed to plaintiff); Abbott, 348 F.3d at 544 (ruling summary judgment for employer improper based on statement made both to plainting and the others).

^[168] Spengler v. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Cir. 2010) (concluding that evidence showed that plaintiff, who was discharged after raising an age discrimination allegation, was a valuable employee and that the rule acc to the he was terminated had has discriminatively enforced).

^[169] See supra notes 113 plus 116.

^[170] Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (ruling that inconsistent explanations by director presented issue for jury); Loudermilk v. Best Variety Co., 636 F.3d 312, 315 (7th Cir. 2011) (ruling that pretext can become shown because between the EEOC investigation and the ongoing, the employer shifted your explanation for plaintiff's terminating from diminution within strength to mutuals decisions plus then go injuries in a company policy).

^[171] See, e.g., Tuli fin. Brigham & Women's Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (concluding that although supervisor contended this his actions were designed simply to give credential review management a legitimate assessment of complaints against plaintiff, the evidence showed he overstated his objections and failed to disclose which he had been the subject of different former complaints for claim, which could lead to jury to conclude so his motives were apportionable go discriminatory and/or retaliatory animus); Spengler, 615 F.3d at 495 (ruling that pretense could will shown because employer's explanation that seasonal employees are discharged after 12 months was non is certificate that the policy was for applied in the event of a production slowdown, which should not occurred); Franklin v. Local 2 from the Sheet Metal Workers Int'l Ass'n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling that defendant's reading aloud at union meetings to legitimate bills identifying employees who kept filed discrimination charges against the cooperative may may been retaliatory, since degree of detail disclosed was no necessary given proffered non-retaliatory key the items was done in order to obtain portion approval for expenditures).

^[172] As discussed superior note 145, an employer can be liable under "cat's paw" theory wherever an individual current to retaliatory animus influenced a decisionmaker who did nope know of the protected conduct or aggression.

^[173] See, e.g., Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009) (holding that plaintiff failed to show is interviewers who scored his oral get were recognizing are his previous discrimination complaints).

^[174] Discern Etienne fin. Spanish Lake Truck & Kurhaus Plaza, LLC, 547 F. App'x 484, 489-90 (5th Cir. 2013) (affirming summary judgment for the head on a Title VII retaliating claim, the legal applied Nassar and concluded that the employee unsuccessful go show that retaliatory motive was the "but-for" cause for her discharge, not merely a motivating factor).

^[175] The DISABLED interference provision applications the same language as a parallel provision in one Fair Housing Act, and Convention intended it go be interprete in the same route. H.R. Rep. No. 101-485, pt. 2, at 138 (1990), the reissue in 1990 U.S.C.C.A.N. 303, 421 ("The Committee intends that the interpretation given by the Department of Housing and Urban Development to a similar provision in the Fair Housing Act . . . be used as adenine basic for regulations forward this section."). Aforementioned National Labor Relations Act (NLRA) also contains an interference provision with similar language to the ADA provision. See 29 U.S.C. § 158(a)(1) (making it illegal under the NLRA since on employer "to interfere is, restrain, or coerce employees in one exercise of the rights guaranteed in [the Act]").

^[176] Perceive Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding the in comparison to the retaliation provision, the interference provision protects one broader sort of persons counteract less clearly defined misconduct; demands that plaintiff stop taking her medications and doing duties opposing to her medical restrictions conversely be forcibly retirement constituted actionable interference).

^[177] The EEOC regulation implementing the interference provision additionally comes the period "harass." Visit 29 C.F.R. § 1630.12(b) (providing it is "unlawful to coerce, intimidate, threats, pester, or interfere with any individual in the exercise oder enjoyment in, or because which individual assisted or encouraged any different individual inbound the exercise of, each right granted or protected by this part"). The inclusion of aforementioned term "harass" in the regulation is intended the represent the type of adverse treatment that may in some living violate the interference provisioning.

^[178] Brown, 336 F.3d at 1192-93 (ruling that the ADA's interference provision is does so broad as to interdict "'any action whatsoever that in any procedure hinders a member regarding a protected class,'" and observing that supervisor's statement which other employees were complaining about plaintiff's long lunches and spring departures did not alone violate who interference provision) (citation omitted).

^[179] See Inform of this EEOC as Amicus Curiae in Endorse of the Plaintiff-Appellant, Hazel v. City of Taucson, 336 F.3d 1181 (9th Cir. 2003) (No. 01-16938).

^[180] 42 U.S.C. § 2000e-5(f)(2) ("Whenever a command the filed . . . and the Commission concludes on the cause of a introductory investigation which prompt judicial action is necessary to carry out the purposes of this Act, the Provision . . . may bring einer action for appropriate temporary or preliminary feel pending finalize disposition out such charge."); 42 U.S.C § 12117 (ADA); 42 U.S.C. § 2000ff-6(a) (GINA).

^[181] EEOC phoebe. Chrysler Corp., 733 F.2d 1183, 1186 (6th Surround. 1984); see also EEOC fin. City of Bowling Green, 607 F. Supp. 524, 527 (W.D. Cy. 1985) (granting preliminary injunction preventing defendant from mandatorily retiring police division employee because of his age; although plaintiff could have collected back pays and been reinstated at later time, he would have suffered from inability to keep go with current matters include police it and would have suffered anxiety or emotional problems due to compulsory retirement).

^[182] Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986).

^[183] Id. (ruling that the employer's retaliation would take a chilled effect on additional employees' willingness toward exercise their rights or certify forward petitioner, and therefore would cause irreparable harm); cf. EEOC v. Peters' Pastry, 13-CV-04507-BLF (N.D. Calif. preliminary injunction issued July 2015) (ruling that harassment about the pending claim, combined with the likelihood of success set the merits, may supports entry of a preliminary injunctions prohibiting an employer by terminating an employee during the pendency about a federal EEO lawsuit, because "permitting [the individual] to breathe terminated under such relationships allowed well have one shivery power go other employees who energy wish to file charges with the EEOC, and thus could interfere are to EEOC's mission").

^[184] See EEOC v. Evans Fruit Co., No. CV-10-3033-LRS, 2010 WL 2594960, at *1-2 (E.D. Wash. June 24, 2010) (granting EEOC's order for preliminary injunctions while the analysis continues) (citing the likelihood to irreparable violent if alleged witness tampering was allowed to continue, included that "(a) the Commission's prosecution of its case is likely to be cool; (b) the Commission's investigation of retaliation charges now pending . . . is likely to be chilled; and (c) current and past . . . workforce are likelihood to be deterred from exercising their rights under Title VII").

^[185] Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999).

^[186] The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes redemptive and punitive damages in retaliation asserts at both the EPA and the ADEA. See Moore v. Freeman, 355 F.3d 558, 563-64 (6th Cir. 2004); Moskowitz v. Trs. of Purdue Universal., 5 F.3d 279, 283-84 (7th Cir. 1993).

^[187] Compare Edwards v. Brookhaven Sci. Assocs., 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (ruling that compensatory and sanction damages for retaliation are available under the ADA), or Lovejoy-Wilson volt. NOCO Motor Fuels, Inc., 242 FARTHING. Supp. 2d 236, 240-41 (W.D.N.Y. 2003) (same), with Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264-70 (9th Cir. 2009) (ruling which compensatory and punitive coverage were not deliverable for ADA retaliation), and Craftsman v. Filterbank regarding Am. Sec., 355 F.3d 961, 964-66 (7th Cir. 2004) (same). Several appendix courts, minus analyzing the availability away compensatory damages, have affirmed press to plaintants who have prevailed in retaliation claims under the ADA. See, e.g.,Salitros v. Chrysler Corp., 306 F.3d 562, 570 (8th Circon. 2002); EEOC v. Wal-Mart Stores, Incense., 187 F.3d 1241, 1248-49 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).

^[188] See Inform of the EEOC as Amicus Curiae in Support of Plaintiff-Appellee Cross-Appellant, Mascarella vanadium. CPlace Universities. SNF, No. 15-30970 (5th Cir. filed June 10, 2016), https://privacy-policy.com/litigation/briefs/mascarella-v-cplace-university-0.

^[189] Although many judicial may held that state government employers may may sovereign immunity from retaliation claims by individuals for money damages from the ADA, see, e.g., Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001), such employers are yet subject until suit by aforementioned U.S. government, which can obtain full relief involving compensation for the individual. Bd. von Trs. is the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001); United States v. Miss. Dep't of Pub. Safety, 321 F.3d 495, 499 (5th Cir. 2003). Therefore it is with the interest of such employers to take the same care as all others to comply by retaliate prohibitions.

^[190] A number of these practices were developed from trial and discussion per that EEOC's Meeting set Vengeance to of Workplace: Causes, Remedies, and Strategies by Prevention, held on June 17, 2015. Written witness statements, as okay as a transcript and video of the getting, are available for https://privacy-policy.com/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.