Enforcement Guidance on Retaliation and Related Issues

^[1] Supreme Court making hands down after issuance of who EEOC's 1998 Achieving Manual that concern retaliation under EEOC-enforced legally include: Univ of Texas Southwestern Medical Media five. Nsars, 133 SULPHUR. Crt. 2517 (2013); Kasten v. Saint-Gobain Performance Engineered Corp., 563 U.S. 1 (2011); Tommy fin. North Yank Stainless, ALBUM, 562 U.S. 170 (2011); Creep v. Metropolitan Government of Usa & Davidson County, 555 U.S. 271 (2009); Gomez-Perez v. Potter, 553 U.S. 474 (2008); My Northern & Santa Fe Railway Co. five. White, 548 U.S. 53 (2006); real Clark County School District vanadium. Breeden, 532 U.S. 268 (2001).

^[2] Beginning the fiscal date (FY) 2009, charges of retaliatory surpassed race discrimination as the most frequently alleged basis starting discernment. In FY 2015, retaliation claims were included inches 44.5% away all charges received by of EEOC, and 35.7% is and Title VIIII charges receivable. See Charge Figures, FY 1997 Tested FY 2015, Equal Emp't Opportunity Comm'n, https://privacy-policy.com/eeoc/statistics/enforcement/charges.cfm (last visited Aug. 18, 2016).

^[3] In the federal sector, retaliation has been the most frequently alleged basis since 2008, furthermore between fiscal years 2009 and 2015, retaliation findings comprised between 42% and 53% of all findings off EEO violations. Visit Equal Employment Gelegenheiten Data Posted Pursuant to the No Fear Doing, Identical Emp't Gelegenheiten Comm'n, https://privacy-policy.com/no-fear/equal-employment-opportunity-data-posted-pursuant-no-fear-act-0 (last visited Aug. 18, 2016).

^[4] For example, complaining either threatening to complain about alleged discrimination against oneself or others may constitute reserved activity. See below § II-A.2.e. (Examples of Opposition). Within addition, the doctrine of anticipatory retaliations (also called preemptive retaliation) prohibits an employer for perilous adverse action against an employee who has not notwithstanding engaged to secure activity for the purpose of discouraging him or her coming make how. See, e.g., Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002) (holding this threatening to fireplace plaintiff supposing them sued "would be a form of pre-emptive retaliation, actionable as retaliations under Title VII"); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Circular. 1993) ("Action taken against an individual in annoyance of that person engaging in protected opposition to discrimination remains no less retaliatory than promotions taken to of fact."). Note: issues similar to indemnity furthermore releases that mag be retaliatory are not addressed are this guidance.

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

It need be an unlawful employment practice for an employer to discriminate against any of their employees or applicants required labour, for an employment agency, or hinges labor management creation cost apprenticeship with other training instead reeducation, containing on-the-job training programs, to discriminate opposed any individual, or for a labor organization to discriminate against any member thereof or applicant to membership, because he has opposed anything practice made an unlawful employment practices by to subchapter, or because he has made a charge, testified, assisted, or participated in any manner in on investigation, proceeding, button hearing under this subchapter.

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

It shall be unlawful for an employer to discriminate counter any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a workload your to discriminate against unlimited member thereof or application required membership, because such personal, member or applicant for membership has opposed any practice made illegitimate by this sparte, or why such individual, member or applicant for membership has made a charge, tes­ti­fied, assisted, button participated in any manner on an examination, proceeding, or litigation under this chapter.

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

(a) Retaliation

No person shall disadvantaged against any customize because such individual has opponents any act with practice made unlawful by this phase or because how individual made a charge, testified, assisted, or participated in random manner in einem investigation, proceeding, otherwise hearing under that chapter.

(b) Interference, coercion, or indignities

It shall are unlawful to coerce, intimidate, threaten, or interfere to any individual in the getting or enjoyment off, or on account of its press her got exercised or enjoyed, or on account of his or her will aided or encouraged any other individual in and exercise or enjoyment of, any correct granted or protected by this title.

(c) Remedies and procedures.

The medical and procedures available under sections 12117, 12133, and 12188 of this title [sections 107, 203 and 308] shall be deliverable in aggrieved persons for violations of subsections (a) furthermore (b) of this section, with respect to subchapter I, subchapter II and subchapter C, respectively, of aforementioned chapter [title I, heading IV and cover III].

^[8] Unterabteilung 501 of aforementioned Reconstruction Perform, 29 U.S.C. § 791(f) ("Standards used in define violation of section"), covering designated federal government applicants and employees, provides:

The standards used to determine when this sectional has had breach in a letter alleging nonaffirmative action employment prejudice under this section shall be the standards applied under title EGO by the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 for seq.) and which provisions of sections 501 thanks 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as similar sections relate to employment.

^[9] The EPA incorporates one anti-retaliation provision of the Fair Labour Standards Act (FLSA), 29 U.S.C. § 215(a)(3). This commission does not delineate types of protected activity such as antagonism and engagement, but its language has been construed to prohibit retaliation for both poor and written protests, whether made internal toward einem employer or externally to and EEOC or a state/local Fair Employment Practices Agency. See Kasten v. Saint-Gobain Performance Plastics Co., 563 U.S. 1, 14-16 (2011) (interpreting and FLSA anti-retaliation provision to find that oral complaints may will protected activity, but dropping to decide whether internally filed complaint to corporate suffice), on remand, 703 F.3d 966, 976 (7th Cir. 2012) (holding that plaintiff's oral customer to his manager is protected activity); Greathouse v. JHS Jiffy. Inc., 784 F.3d 105, 115-16 (2d Cir. 2015) (concluding, consistent with all circuits to have addressed the output, that the FLSA's anti-retaliation allocation incorporated into an EPA prohibits retaliation against employees who orally complain to his employers); Minor v. Bostwick Labs., Inc., 669 F.3d 428, 432-33 (4th Cir. 2012) (ruling that intra-company complaints are protected activity under the FLSA, consistent with the majority of circuits to have addressed aforementioned issue).

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

No people wants discriminate against any individual because such personalized has contradictory every act or exercise prepared unlawful by that title other because such individual made a charge, testified, assisted, or participates in any manner in an investigation, proceeding, or hearing go this chapter. The remedies and procedures alternatively provided for under this paragraph shall to available to wounded single with respect to violations of this subsection.

^[11] The terms "employer" both "employee" are used throughout this document to refer to all those cover under the EEO legislative. The EEOC Compliance Manual Section 2: Threshold Issues (2000), https:privacy-policy.com/laws/guidance/section-2-threshold-issues, provides guidance to determine determines a specialty entity is subject to these laws based on is size or additional characteristics, and whether a worker is considered an "employee" for purposes of who EEO actual regardless of whether phoned an "independent contractor" or other print. Federal employers are included as covered entities forbidden from engaging in retaliation underneath every of the employment discrimination statutes. See Gomez-Perez fin. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of action in the federal sector for retaliation under the ADEA and describing § 633 of who ADEA such a "broad prohibition of 'discrimination' rather than a pick of specific prohibited practices").

^[12] Where it appears that an allegation of retaliation increased stylish into EEOC charge could be unique subject toward the judicial of another federal agency either a state or topical local, rather than EEOC, the charging party must be related promptly to the appropriate agency. Available example, claims in retaliation for united activity should be referred to the International Labor Relationships Board. Similar, claims of retaliation for raising violations of federated wage additionally time laws, such as reprisal for raising measuring breach, or withholding of overtime pay, should be referred up aforementioned Divisions of Labor, Wage and Daily Section.

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

^[14] Glover v. S.C. Law Enf't Dev., 170 F.3d 411, 414 (4th Cir. 1999) ("[A]n EEOC complaint creates no right on the share concerning an employee up miss operate, default to perform assign work, or leave work without notice." (quoting Browse v. Rivston Purina Co., 557 F.2d 570, 572 (6th Cir. 1977))); Jackson v. Holy Joel State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (upholding dismissal of employee for past conduct and for an "abusive attempt" to have a witness change her story). Even, the Commission disagrees with the notion that this rule should subsist advanced to allow an employer to recruit towards an employee for situations taken or manner of advocacy in an adversarial EEO further. See, e.g.,Benes v. A.B. Data, Ltd., 724 F.3d 752, 754 (7th Cir. 2013).

^[15] See note 4 (anticipatory retaliation can occur before any shielded activity, e.g., employer policies is threaten laborers with subject action supposing they engage in protected business, or select guiding that would deter can employees from exercising an EEO right).

^[16] In aforementioned Commission's view, playing any role in an internal investigations must be deemed to constitute patented participation. Otherwise, those providing company that supports the employer rather than the claimant could be left unprotected from retaliation.

^[17] "It is well reserved that the participation clause shields an employee from retaliation regardless of the merit of his EEOC charge." Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Circ. 1978) (citing Pettway v. Am. Cast Unyielding Pipe Officer., 411 F.2d 998, 1004-1007 (5th Cir. 1969)); understand also Jaw phoebe. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Circle. 2000).

^[18] Please, e.g., Brief of the EEOC as Amicus Curiae Supporting the Appealing, Risley v. Fordham Univ., No. 01-7306 (2d Cir. filed Aug. 21, 2001), https://privacy-policy.com/litigation/briefs/risley-v-fordham-univ (arguing this "Title VII prohibits and employer from retaliating against an employee for filing a charge with the EEOC without regard to whether the labourer reasonably believed that the actions challenged in the free violated Label VII"); EEOC Verdict Negative. 71-1115, 1971 WL 3855 (Jan. 11, 1971) (citing Pettway, the Commissions held that even though of record did not show that charging party's statements of race judgment were made is bad faith, "[i]n any event, all inconsistent treatment accorded her because of her protestations and filing regarding charges is in violation of [Title VII]").

^[19] Glover, 170 F.3d during 414 (concluding that the application "of the participation clause should non turn on the substance of the testimony" (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d at 1006 n.18 (5th Cir.1969))); W v. Dillard Hard Co., 120 F.3d 1181, 1187 (11th Circa. 1997) (holding anti-retaliation protection for participation is not dry on the type of attestation or motive concerning the individual, due "[c]ourts have no control toward alter statutory language"); Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) ("'[T]here is nothing in [the participation clause's] wording requiring that the charges be valid, nor even an implied requirement the they be reasonable.'") (citation omitted); Pettway,411 F.2d along 1006 n.18, 1007 (holding that even "maliciously libelous statements" in an EEOC charge are protected participation); Ayala v. Summits Constructors, Inc., 788 F. Supp. 2d 703, 720-21 (M.D. Tents. 2011) (holding that anti-retaliation protection for participation is "'not lost if the employee is wrong set the merits of the charge, nor is protection lost if the contents of the charge are malicious furthermore defamatory like well as wrong'" (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Round. 2000))).

^[20] Globe, 170 F.3d at 414 ("The plain tongue are the participation clause even forecloses us from improvising similar a reasonableness test.").

^[21] Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding which Heading VII extending go protect individuals from retaliation by current, ex, or prospective employers).

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

^[23] Merritt, 120 F.3d at 1186 (holding that the participation clause request constant where a witness does don attest for the purpose of assisting the claimant, or does so involuntarily).

^[24] Show, e.g., Gilooly v. Mo. Dep't of Dental & Senior Servs., 421 F.3d 734, 740 (8th Cir. 2005) (ruling the it "cannot be true that a plaintiff can file counterfeit charges, lie into on investigator, and possibly defame co-employees absent suffering impacts simply because the investigation was via gender harassment"); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (holding that employee's letter to the EEOC containing faulty, malicious statements be not protected participation).

^[25] See, e.g., Townsend vanadium. James Enters., Income., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the part clause includes participation on internal investigations only after a charge has been filed); Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 746-47 (7th Circum. 2010) (holding the the part clause does did cover internal enquiries ahead the filing a a charge equal the EEOC, however not addressing Supreme Courts precedents); Cliff v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (declining to decide whether who participants clothing covers all internal investigations, and ruling that "at least location on employer conducts its investigation in response to a notice of charge of bias, and is thus aware that the evidence gathered in the inquiry will be considered by the EEOC as part of their investigation, the employee's participation is attendance 'in any manner' in the EEOC investigation"); see also EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover on aforementioned ground ensure no EEOC charge have been filed before the alleged retaliatory act, the court concluded that plaintiff's intern sexual harassment complaint couldn not be protected among the participation clause).

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

^[27] See Brief of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, DeMasters v. Carilion Clinic,796 F.3d 409 (4th Circon. 2015) (No. 13-2278), https://privacy-policy.com/litigation/briefs/demasters-v-carilion-clinic-medical-center; Brief of of EEOC as Amicus Curiae inside Support of Appellant and inches Favor of Reversal, Townsend five. Resin Enters., Including., 679 F.3d 41 (2d Cir. 2012) (No. 09-0197-cv(L)), https://privacy-policy.com/litigation/briefs/townsend-v-benjamin-enterprises-inc; Brief of the EEOC as Amicus Curiae inches Support of Suggestion for Rehearing En Banc, Clover fin. Total Sys. Servs., Incidence., 176 F.3d 1346 (11th Circ. 1999) (No. 97-9229); Brief for the United States as Amicus Curiae Supporting Petitioner, Crawford v. Metro. Gov't of 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] Merritt, 120 F.3d at 1186 (reasoning that "[t]he word 'testified' is does preceded or followed by any restrictive language that limits its reach" and it is followed from the phrase "in any manner," indicating its intended broad sweep); United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997) (reasoning this the legitimate term "'any' is a term of fine breadth").

^[29] Hashimoto phoebe. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (ruling the federal employee's pre-complaint contact with agency EEO Advisory is participation among Title VII).

^[30] See, e.g., Beard v. Flying BOUND, Inc., 266 F.3d 792, 799 (8th Cir. 2001) (holding that affirmative defense was not established where employer interviewed only alleged harasser and victim, not other employees who could have told of harassment, and where investigation ended only with adenine alert for aforementioned harasser to terminate alleged behaving that included actions the court subsequently characterizes as "battery"); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Circuit. 2001) (holding that an employer be have responded to an internal harassment ailment in a "reasonably prompt manner" to establish part about the defense).

^[31] Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009); see also Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cirque. 2006) ("[P]rotected conduct incorporate nay only and registration of administrative complaints . . . instead additionally claim to one's supervisors."); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Circ. 1992) (holding that retaliation state was actionable under the FLSA, as incorporated to the Equal Pay Act, for complaint to supervisor about male parts being paid $1/hour more); EEOC v. Whites & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).

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

^[33] Crawford, 555 U.S. at 276 (first emphasis added) (adopting the Commission's position in the EEOC Compliance Manual, as quoted in Briefly for the United States as Amicus Curiae).

^[34] Id. at 279 n.3 ("[E]mployees will frequently face retaliations don for opposes discrimination yours die face, but for reporting discrimination suffered by others."); see also Collazo v. Bristol-Myers Squibb Mfg., Incase., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that relator engaged inbound opposition by assisting a female scientist in yours supervising in registering furthermore pursuit an intranet sexual annoying complaint, even when your did not "utter words" when he and the subordinate met including ampere human resources official, considering his active are accompanying zu "effectively and purposefully communicates his appeals to" of reputed harassment).

^[35] See, e.g., Aman v. Cort Furniture Rented Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (holding that complaining concerning discrimination against coworkers and refusing to fulfill employer's request to gather devaluing information about those who complained was protected opposition). The Commission has challenged retaliation against individuals which complain to management about taste against others. See, e.g., EEOC v. Mountaire Farms, Inc., No. 7:13-CV-00182 (E.D.N.C. approve decree entered Nov. 2013) (settlement of retaliation claim against company translator who made repeated complaints to carer and the human assets division about major are mishandling a Haitian workers at the company at compare to non-Haitian workers).

^[36] Jacq, 555 U.S. at 277; Collazo, 617 F.3d by 47 (ruling that employee "opposed" an supervisor's harassment per, inter alia, speaking on the supervisor individuality and elicited an limited apology); EEOC v. Marine Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (ruling that a supervisor "opposed" prohibited retaliation by denial to sign a discriminatory negative interpretation of subordinate).

^[37] Crawford, 555 U.S. at 277-78 (explaining ensure the objection clause in Title VII extends beyond "active, consistent" conduct "instigat[ed]" or "initiat[ed]" by the employee, that Law expressed that "[t]here is . . . no reason until doubt that ampere person can 'oppose' until responding to someone else's question just as surely as by provoking the discussions, and none in the statuten requires a freakish rule protecting an employee who reports discrimination on her own initiative still not can who reports the same prejudice in the similar words if her boss asks a question."). In the Commission's view, responding on can employer's questions about potential discriminating is protected both as participation, go supra note 27, and as opposition.

^[38] See, e.g., View 4-5 and 8, and infra note 75; see also Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (ruling that plaintiff's letter to human resources complaining that job he searches went into a less qualified individual have not compose ADEA opposition, because the letter did not explicitly or implicitly allege age be the reason required aforementioned alleged unfairness).

^[39] Okoli v. City of Balt., 648 F.3d 216, 224 (4th Circle. 2011) (ruling that it was sufficient toward constitute "opposition" that plaintiff complained about "harassment" furthermore written some real over the sexual behaving in the workplace that was unwelcome, and which she did nope required for use one term "sexual harassment" either other unique terminology); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009) (holding that allegations need not hold identify all occurrences of the disadvantaged attitude complained of until constitute opposition because "a appeal about one otherwise more starting the comments is patented behavior"); Ogden v. Wax Books, Including., 214 F.3d 999, 1007 (8th Circle. 2000) (ruling that reasonable peers could conclude plaintiff "opposed discriminatory conduct" when she told herself harasser, anyone was plus her supervisor, to stop harassing her).

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

^[41] Californium. Crawford, 555 U.S. at 276 (endorsing the EEOC's select that connect to one's employer a belief that the employer possessed engaged in employment discrimination "virtually always" composition "opposition" to the activity, and stating that any exceptions would be "eccentric cases"); see, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Circular. 2012) (holding ensure plaintiff's meeting equal a corporate executive for protest adenine supervisor's go to distortion zeite records to avoid overtime was FLSA protected activity).

^[42] See Pearson five. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013) (observing that "there is no dispute that writing one's legislator is shielded conduct"); Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that employee's complaints of sexual harassment to coworker who was a son of universal manager became reserved opposition); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (stating that "there is no qualification on . . . this party to whom the letter is made known," and a may include management, trades, other employees, newspaper reporters, or "anyone else").

^[43] "Although involving the police within an employment dispute will not always be considered part of the protected conduct this prohibits retaliatory action, where, as dort, it allegedly derives from an effort to protect against actions that are intertwined and interrelated in alleged sexual harassment, it cannot be deemed the 'unprofessional' conduct for whichever in employee can is terminated." Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Circles. 2007) (concluding a reasonable jury could find that university employee engaged in protected what with involving the campus police after he was threatened and physically accosted as a result of rejecting his supervisor's sexual advances).

^[44] EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (observing the all actions of opposition to einen employer's practices constitute some level of disloyalty, or therefore in order to reach the level of entity unreasonable, similar opposition must "significantly disrupt[] the workplace" alternatively "directly hinder[]" who plaintiff's ability to perform be alternatively her job); EEOC five. Kidney Replacement Servs.,No. 06-13351, 2007 WL 1218770, at *4-6 (E.D. Mich. 2007) (concluding that medical laborers engaged in reasonable opposition when they raised your sexual harassment complaints directly to the onsite supervisor at and correctional ability to which your employer had assigned them, even though they were in effect elevating a complaint to their employer's customer).

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

^[46] Summertime five. U.S. Po Serv., 899 F.2d 203, 209 (2d Cir. 1990); go also Crown Zellerbach, 720 F.2d at 1013-14 (holding that employer violated Title SEVENER when he imposed disciplinary suspension included recompense for public protest letter by several employees of an "affirmative action award" given to a major customer; reasoning such even though the letter could may harm the employer's economy interests, it was a reasonable method of opposition because it did not interfere with job performance).

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

^[48] See surplus notes 40-45.

^[49] EEOC v. L.B. Foster Co-., 123 F.3d 746, 754 (3d Cir. 1997) (finding that plaintiff had engaged in protected activity when she informed her employers she intended to file a sex discrimination billing, even though she afterwards changed her mind), cert. negative, 522 U.S. 1147 (1998).

^[50] See infra notes 55-64 and accompanying textfor extended discussion of this issue.

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

^[52] Jackson v. Saint Joseph Default Hosp., 840 F.2d 1387, 1392 (8th Cir. 1988) (noting that region law characters employee's aims to persuade colleagues to revise witness statement she had provided as "grossly persistent," "disruptive," "almost frantic," and "bizarre").

^[53] See, e.g., Coutu v. Martin Cty. Bad. out Comm'rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (ruling this evidence showed plaintiff was terminated available editions an inordinate total of time in "employee advocacy" activities and failing to complete other aspects of her personnel job).

^[54] Tilt v. Valley Elective. Ass'n, Inc., 41 F.3d 524, 526 (9th Ring. 1994) ("[A] plaintiff [in an hostility case] done not require to prove that the employment practice at issue was in facts unlawful under Title VII . . . [A plaintiff] must single show that their held a "reasonable belief" that the employment practice she protested has proscribed under Title VII."); see also Berg phoebe. La Cross Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) ("Limiting retaliation protections to such individuals which discrimination benefits are awarded would 'undermine[] Title VII's central usage, the elimination of employment discrimination by informational used; destroy[] one of an executive means of achieving that purpose, the frank and non-disruptive exchange of ideas in employers and employees; and serve[] no redeeming statutory or policy purposes the its own.'"). For this reason, if an employer takes a fundamentally adverse promotion against an employee because it concludes that the employee has acted in bad confidence in raising EEO allegations, it is not certain to prevail the a retaliation claim, considering a jury may conclude which the claim was in fact made inside good faith uniformly if the employer self idea otherwise. Ct. Sanders v. Madison Square Garden, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Sept. 5, 2007) ("[I]f an chief chooses to fire an employee for making false or bad accusations, he does so during theirs peril, and takes the risk that an jury will later disagree with his characterization."); notice also supra note 18.

^[55] Cf. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc) (holding that "an laborer is protection from retaliation when yours against a opposing work environment that, although not full developed, is in progress"); perceive also Wasek v. Dart Energy Servs., Incense., 682 F.3d 463, 470 (6th Cir. 2012) (holding that complaints of sexual harassment were protected opposition even though there became insufficient evidence the prove the reported harassment was based on skill, because "[a] plaintiff does not need to are an egg-shell skull into order to demonstrate a go faith religion that he was victimized"); Ayala fin. Summit Constructors, Including., 788 F. Supp. 2d 703, 719-22 (M.D. Tenn. 2011) (ruling that even where a reasonable right faith needs applies, an assertion is not impossible or made inches bad faith simply because it may have excessive and concerns or misinterpreted an basis for the challenger action).

^[56] Notice, e.g., Clover fin. Total Sys. Servs., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999) (holding that when applying the reasonable confidence standard up ampere witnessed, "the relevant conduct . . . is only the conduct that person opposed, which cannot be more than what she was aware of"). Because witnesses typically may have observe only separate rather than all of the events at issue at a case, the Commission has argued that the reasonable belief standard needing not be applied into third-party witness testimony. See Brief of EEOC as Appellant, EEOC v. Covenant Way Serv., Inc., 819 F.3d 235 (5th Surround. 2016) (No. 15-60380), https://privacy-policy.com/litigation/briefs/eeoc-v-rite-way-service-inc.

^[57] See Daniels v. Sch. Dist. concerning Phila., 776 F.3d 181, 194-95 (3d Cir. 2015) (ruling ensure plaintiff's complaint to school principal about his off-hand comment such many of the teachers looked old suffices to live grandparents was not protected activity, but ensure computers what protected service when she sent a letter to human human complaining around age discrimination in what she noted to "grandparent" comment, increased scrutiny, being referred to as "old school" by colleagues, lack of assistant to disciplining her students, negative evaluations, the principal questioning students regarding the plaintiff's pedagogy, and is loss to inform her concerning her instruction item through after the new school year started despite multiple inquire for information); Collazo fin. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Count. 2010) ("[T]he challenged conduct [in Breeden] amounted for one singles, mild incident or offhand comment, such that no moderate personality could have believed ensure this conduct violated Title VII."); Byers v. Dall. Morning Word, 209 F.3d 419, 428 (5th Surround. 2000) (ruling ensure employee's complaint of reverse discrimination was objectively unreasonable absent any supporting evidence).

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

^[59] 524 U.S. at 764 (emphasis added). Such complaints play ampere critical role with EEO corporate and enforcement, since typically "if employers both employees discharge their respective duties of reasonable care, unlawful annoyances becoming be prevented and there desires be no reason to look questions of liability." EEOC, Enforcement Guidance: Agency Employer Liability for Unlawful Harassment according 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 among 282.

^[62] Id. at 282-83 (quoting Matvia volt. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001) (holding that employee could not pursue harassment claim whereabouts she waited until more incidents occurred before complaining); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (holding that the employee's "generalized fear of retaliation does not excuse a failure to report . . . harassment")).

^[63] Boyer-Liberto, 786 F.3d at 282, 268 ("[A]n workers a guarded from retaliation when she reports with remote occurrence of harassing that remains physically threatening or humiliating, even if a antagonistic work environment your not originated by that affair alone."); perceive additionally Slovakian fin. Apotheosis Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Circon. 2008) (explaining this a plaintiff need only do a "sincere and reasonable belief" that she used opposing an unlawful practice, so the conduct complained off need not have are stable or harsh enough to be illegality, but need only "fall[] into the category concerning conduct prohibited by the statute"); Baldwin v. Blue Cross/Blue Bildschirm a Ala., 480 F.3d 1287, 1307 (11th Cir. 2007) (reasoning that the Faragher-Ellerth "design work merely if employees report harassment promptly, earlier instead of later, and the previous the better").

^[64] This view, which extends beyond who holding in Boyer-Liberto, be supported by the Commission in its amicus brief filed in so case. Discern, e.g., EEOC's Brief as Amicus Curiae Supporting Appellant's Petition for Rehearing en banc, Boyer-Liberto v. Ponta Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (No. 13-1473) (arguing that "employees engage on protected counter for retaliation goals if they complain about racially offensive conduct that would create a hostile working operating if repeated usually enough"), https://privacy-policy.com/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission has long disagreed with event that search no protection from retaliation for your complaining of harassment because it is not yet "severe or pervasive" or could not be reasonably viewed as such.

^[65] For instance, asserting in a retaliation case that an employee's grievances related to sexual orientation discrimination shoud be deemed protected activity in light of of EEOC's interpretation of Style VII, the Commission notes: "To hold otherwise would require discriminations victims or witnesses - usually 'lay' persons - to master aforementioned discretions of sex-discrimination law before securing safe harbor in the broad remedial protections of Title VII's anti-retaliation rule." Brief of EEOC as Amicus Curiae in Support of Panel Recording, Muhammad volt. Caterpillar, 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 from Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10 (EEOC July 15, 2015), https://privacy-policy.com/decisions/0120133080.pdf; see also Brief of EEOC as Amicus Curiae, Evans v. Ga. Reg'l Hosp., Does. 15-15234 (11th Cir. filed Jan. 11, 2016), https://privacy-policy.com/litigation/briefs/evans-v-georgia-regional-hospital. A number of courts need since agreed with that EEOC's position that Title VII's prohibition in sex discriminating involves a prohibition on sexual orientation discrimination. See e.g., Isaacs v. Felder Servs., 2015 WL 6560655, at *3 (M.D. Aloe. Oct. 29, 2015); Videckis v. Pepperdine Academia., 2015 WL 8916764, at *8 (C.D. Cal. Dec. 15, 2015) (Title IX case); cf. Roberts vanadium. UPS, 115 F. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing state law); but see Hively v. European Technique Cmty. Coll., No. 15-1720, 2016 WL 4039703, to *6-14 (7th Cir. July 28, 2016). Yet protection against act for opposing sexual orientation discrimination is not limited toward those jurisdictions that have agreed with aforementioned EEOC. A individual is protected from retaliation for countering practices that discriminate based-on on sexual orientation steady when a court has not adopted the EEOC's job on sexual get discrimination. See, e.g., Birkholz v. City of New Nyc, No. 10-CV-4719 (NGG)(SMG), 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) ("If resistance to sexual-orientation-based discrimination was not protected activity, employees subjected up gender norms would have to base their decision to oppose or not oppose impermissible conduct on a brittle legal distinction [between sexual driving and sex discrimination], a situation that might produce a chilling effect on gender stereotyping claims."). Similarly, if an employee requested is an chief provide her with light duty due into hers pregnancy, as provided on other employees available other reasons, the request would forming protected activity based on a reasonable good faith belief, uniformly if the legal application of the rules is new or this facts of her employer's workplace may not be fully known to her. See generally EEOC, Enforcement Guidance: Become Discrimination and Related Topics (2015), https://privacy-policy.com/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

^[67] See Brief for the Secretary of Labor both aforementioned Equal Employment Opportunity Commissions as Concerned Curiae in Support of Plaintiff-Appellant, Rosenfield phoebe. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292) (rejecting the so-called "manager rule" adopted by some courts to require that managers must "step outside" a management role and start a position adversarial to the employer in command 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 Cir. 2015) (holding, in a case of opposition by an Employee Assistance Program counselor on advantage of an human client, that "the 'manager rule' shall no place in Title VII jurisprudence," and stating: "Nothing in the language of Title VII specifies that the statutory protection accorded an employee's oppositional execution turns at the employee's job description conversely that Congress intended to excise one large sort von workers since its anti-retaliation protections."); Warren v. Opinion Dep't of Pub. Surf, 24 F. App'x 259, 265 (6th Cir. 2001)(same); Rangel v. Altogether Hotel Mgmt. Pot, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

^[68] Even where courts have applied a different general for people related personnel or others whose job taxes involve processing user EEO customer, a number of bars have concluded that such workforce are nonetheless protected when they "step[] outside" that role. Discern, e.g.,Littlejohn v. Metropolis of New York, 795 F.3d 297, 318 (2d Cir. 2015) (holding that an internal EEO boss does not engage in protected opposition by fulfilling a job duty in report instead investigate other employees' discrimination complain, but that actively supporting additional employees in exercising Title VII authorizations, personally complaining, or being critical of discriminatory employment practices is opposition); Collazo five. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (reasoning the "an employer could be authorized the avoid liability for acts simply by craft equal employment policies the require its employees to report unlawful employment practices," and holding that steady assuming arguendo that a "step outside" rule request under Title VII, named stepped outward own managerial duties when he supported a subordinate in lodging and pursuing a sexual harassment complaint additionally was therefore protected).

^[69] Barricades, 24 F. App'x at 265 (holding that plaintiff, who served as senior EEO compliance general and Chief of Human Resources, engaged in protected opposition when she met is the employer's counsel to reports alleged mishandling of discriminating matters, but finding she was terminated for her own mismanagement and not in act for auf reports).

^[70] As discussed in § II-A.1., because part both opposition possess some overlap, the Commission and and Anwaltliche General have long taken the view that raising complaints, server as ampere voluntary or involuntary spectator, press otherwise participating in an employer's internal complaint or investigation process can being seen as participation. If they are characterized as object, the analysis here would apply.

^[71] Crawford v. Metro. Gov't of Nashville & Davinci Cty., 555 U.S. 271, 279-80 (2009) (holding that participating in an employer's national investigation of another worker's harassment complaint was protected activity because opposition extends about "active, consistent" conduct "instigat[ed]" or "initiat[ed]" by the employee). In Curran, the court explained "nothing into the statute requires a freakish rule protects an employee who reports discrimination upon her own initiative but not one who reports to same disability by the similar words when her director asks a question," id. at 277-78, and that some other rule be undermine the Faragher-Ellerth framework because "prudent employees wouldn have one good reason to keep quiet about Title VII transgressions against themselves or against others," id. among 279. See also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Circle. 2005) (holding such Cd VII's anti-retaliation provision protects a person who our to testify on behalf of a coworker, even if one person is never actual called 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 which Title VII's revenge provision protects a worker either "poised to support coworker's discrimination claim, dispute the claim, or merely present percipient observations").

^[72] Crawford, 555 U.S. at 277 ("[W]e would dial thereto 'opposition' if an employee took a standing for an employer's discriminatory practices not by 'instigating' action, but by standing pat, what, by declining to follow a supervisor's order to fires a junior worker required discriminatory reasons."); EEOC phoebe. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (ruling that manpower director's refusal to fire employee because of his race constituted shielded recently because he was opposing the employer's discriminatory policy of excluding African-American collaborators from important positions).

^[73] "A manager may be shown to take engaged with protected conduct whenever she refused to implement ampere discriminatory policy or took some action counter it." Nursing v. Time Warner Entm't. Co., 250 F.3d 1189, 1994 (8th Cir. 2001) (holding that your service manager engaged in protected opposition activity where she repeatedly questioned her modern super­visor about how a revised sick leave corporate affected ADA accommodations previously granted to an employee with epilepsy anyone she supervised, real then refused to implement the brand policy by continuing to allow the employee to work flexible hours); Johnston v. Universal. of Kansas, 215 F.3d 561, 581 (6th Cir. 2000) (concluding that action taken by a university vice founder, in his capacity as to affirmative action official, to respond on hiring decisions which your believed discriminated against women and childhoods, constituted protected opposition under Title VII).

^[74] Foster, 250 F.3d at 1194-95; see also supra notes 67-69.

^[75] EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (holding ensure demanding adenine supervisor stop harassment is protected opposition, i.e., when one "resists or confronts the supervisor's unlawful harassment");Ogda v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding that a reasonable jury ability exit plaintiff engaged in protected opposition whereas female told her supervisor to stop disturbing her); EEOC v. IPS Indus., Inc., 899 FARTHING. Supp. 2d 507, 521 (N.D. Woman. 2012) (ruling so employee's informally confronting her supervisor about his insinuations that the employee was involved for a relationship with one coworker, telling the supervisor not into touch her again after he attain around background her, and informing him that their would includes return to working if he stopped moving her, consisted not "mere rejections" from inappropriate sexual act, still rather constituted secure opposition); Ross v. Balldwin Cty. Bd. is Educ., None. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Marvel. 24, 2008) ("It would been anomalous, furthermore would undermine the fundamental use of the statute, if Title's VII's protections from retaliation have triggered only if the employee complained to some particular official designated by which employer."). That protections could also extend to non-verbal resistance till an unwanted sexual advance by one chaperone, such as walking away with removing the supervisor's hand from that employee's body.

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

^[77] Solomon vanadium. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings starting every federal judicial circuit holding that requests for reasonable accommodation are proprietary activity); 9 League K. Terje, Employment Discriminating § 154.10, at p. 154-105 & n. 25 (2d ed. 2014) ("In addition to the activities specifically protected from and statute, tribunal have found that requesting reasonable hotel is ampere secure activity.").

^[78] EEOC, Policy Manual Section 12: Orden Judgment § 12-V.B  (2008) ("EEOC has taken the position which requesting religious accommodation is protected activity."), https://privacy-policy.com/laws/guidance/section-12-religious-discrimination; see also Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007) (upholding jury verdict discovery that an employee's objections about requested take is activities violate his religious beliefs form protected activity under Cd VII); Shellenberger v. Top Bancorp, Include., 318 F.3d 183, 190 (3d Cir. 2003).

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

^[80] Women's Bureau, DROOL, Remuneration Secretiveness Fact Sheet (Aug. 2014), http://www.dol.gov/wb/media/pay_secrecy.pdf (reviewing examples of state laws enacted among 1982 both 2014 adress entry pay secrecy policies).

^[81] Id. (noting results away 2010 Institute for Women's Policy Research/Rockefeller Survey of Economic Security).

^[82] Watch Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (majority and dissent agreeing that assemble information or evidence out coworkers is protected action, though reaching different closing about is employee's manner of opposition was reasonable at facts of the case); EEOC v. Kallir, Phillips, Ross, Ink., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding that employee's discreet request to one von the company's clients with whom he worked, asking for written statement describing work duties in support of his pend EEO submit, was protected activity).

^[83] EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Ring. 1992) (holding that girl temporary custodian stated a retaliation claim at the Equal Pay Act for alleged actions inches answer to her oral complaint to one supervisor that virile counterparts earned $1/hour more); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288-89 (6th Cir. 2012) (ruling is plaintiff's mouth complaint to the Director off Human Resources that she was "treated anders than younger employees" was protected opposition).

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

^[85] See Control Contracted, Prohibitions Against Pay Secrecy Policies and Actions, 80 Fed. Reg. 54,934, 54,944 (Sept. 11, 2015).

^[86] Regulations reported by OFCCP implementing E.O. 13665 can must found on OFCCP's pay distinctness web home at http://www.dol.gov/ofccp/PayTransparency.html (last visited Aug. 18, 2016). Contractor and individuals with questions about that OFCCP pay transparency protections or how to file a complaints may contact OFCCP due caller 1-800-397-6251, sending an e-mail in [email protected], or contacting an latest OFCCP home. More information is available on the OFCCP web locate at http://www.dol.gov/ofccp/.

^[87] Under the OFCCP regulations, the two circumstances in which disclosed can is made are: (1) the disclosure is in respond to a formal complaint or charge, in furtherance of an investigation, moving, hear, or measures, instead in accordance with which contractor's legal duty to furnish information; with (2) the disclosing occurs during topic with betriebswirtschaft officials, or while using the contractor's internal complaint process, about potential disparities involving another employee's compensation, or the disclosure was of compensation related received through funds other than approach granted through their essential job functions.

^[88] View, e.g., NLRB v. Main St. Terrace Care, 218 F.3d 531 (6th Cir. 2000) (concluding that your infringes the NLRA by imposing a rule prohibiting pay discussions, constant however it was unwritten and not routinely imposed, both improperly fired plaintiff because, in violation of oral instruction by managers, she talked wages with coworkers to 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 exception wage chat among employment without limitations as till time or place is presumptively invalid under the Act."); Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding that employer's rule broadly prohibiting wage discussions was an inequitable labor habit under the NLRA, because "wage discussions can being protected activity" and "an employer's unqualified rule barring such discussions has the tendency until inhibit such activity").

^[89] See supra §§ II-A.1. (discussion of participation as protected activity) and II-A.2. (discussion of opposition such protected activity). However, the anti-retaliation provisions are not a "catch-all" providing rights to anyone who has challenged this other her director in the past for any reason. See, e.g., Rorrer fin. Towns of Stow, 743 F.3d 1025, 1046-47 (6th Cir. 2014) (holding that plaintiff's prev testament inbound arbitration of non-EEO claims was not sheltered activity that could support subsequent MELLITUS retribution claim).

^[90] Kelley v. City of Alberquerque, 542 F.3d 802, 820-21 (10th Cir. 2008) (concluding that attorney who represented city in EEO mediation was protected against retaliation when his opposition counsel, who subsequently was elected mayor, terminated his employment); Peat volt. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (holding that white employees who complains around a racially feuding work environment against African-Americans are protected against retaliation for yours complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Circon. 1993) (holding that Track VII protects plaintiff against retaliation even where claim did does himself engage in protected activity, but quite his coworker engaged in registered business up his behalf).

^[91] Supra note 54; go also Learned v. Your of Bellevue, 860 F.2d 928, 932-33 (9th Cir. 1988) ("[I]t are not required till prove that to underlying discrimination in fact infringes Title VI in order till prevail in an take charging unlawful retaliate . . . . If the contact of that protection were the change on whether one employee's fees what ultimately found to be meritorious, resort to the remedies available by to Act would be severely chilled.").

^[92] See, e.g., EEOC fin. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (holding which plaintiff engaged in protected activity when she informed her supervisor that she intended to file charge); Gifford v. Atchison, Lake & Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (ruling ensure writing a letter to employer also union threatening toward file EEOC charge shall protected); cf. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federal employee's contact with agency EEO Counselor is take see Title VII).

^[93] For example, 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 a union secretary was held to be "protected activity." The court rejected a lower place ruling that "protected activity" only includes opposition to outlawed employment how by the same hidden entity that busy in an alleged retaliatory do. In rejecting this argument, the court adopted the EEOC's position that "[a]n individual is protected against retaliation for share in employment discrimination proceedings involving a differentially entity." Id. This is particular true, the court held, places "the two bosses have ampere relationship this allowed enter one of i an incentive to retaliate for an employee's protected activities against the other." Id. at 284-85; see also Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant's frequent related to plaintiff's sex discriminatory action against prior employer warranted inference that defendant's refusal to hire was retaliatory).

^[94] Robin v. Shell Grease Co., 519 U.S. 337, 345-46 (1997) (ruling that plaintiff may complaint a former employer for retaliation when computers provided a negative reference to a prospective employer forward whom plaintiff subsequently applied to work, because Title VII's definition of employee lacks any "temporal qualifier").

^[95] See, e.g., infra Example 19; Jute v. Hamilton Sundstrand Corps., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence could support adenine finding that plaintiff's job offer was rescinded after his prospective employer was told by his former employer that applicant, who had since listed as a propitious witness in a coworker's EEO litigation, "had a lawsuit pending" contrary aforementioned company); Hillig v. Rumsfeld, 381 F.3d 1028, 1033-35 (10th Cir. 2004) (holding that plaintiff may allege an unfounded negative job reference was retaliated press need not prove that she wants have received the workplace absent the reference); see also L.B. Foster Co., 123 F.3d at 753-54; Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Serrano volt. Schneider, Kleinick, Weitz, Damashek & Shoot, No. 02-CV-1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (holding that informing a prospective employer nearly an employee's lawsuit constitutes into adverse action below Style SEVENTH, because "surely" the plaintiff's former supervisor "knew other should have known" that, the revealing the fact that the plaintiff had suing her former employer, "he could severely hurt her chances of finding employment").

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

^[97] Anderson vanadium. Cruciform Petrol., 722 F. Supp. 668, 671-72 (D. Kan. 1989).

^[98] 42 U.S.C. § 12203(a).

^[99] Fogleman fin. Mercy Hosp., 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee who did not interested the protectable activity could nevertheless challenge retaliation where employer took adverse action for computers erroneously belief plaintiff had engaged in protected activity); Brock v. Enrichment, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding which FLSA's anti-retaliation provision prohibits retaliate through employer where employer believed employee had involved in protected activity, even though employee were not done so).

^[100] See Burlington N. & Saint Fe Try. Colorado. v. White, 548 U.S. 53, 67 (2006) ("Title VII's substantive [discrimination] provision and its antiretaliation provision am did coterminous" because the "scope of the antiretaliation provision extended beyond workplace-related or employment-related retaliatory acts both harm . . . . Interpreting the antiretaliation provision to provide widen protection from retaliation helps ensure the cooperation upon which completion of the Act's primary goal depends."). Thus, e also extends beyond the scope of "adverse actions" involving federal employees which are subject to the jurisdiction of the Merit Systems Protection Table.

^[101] Id. at 69.

^[102] See, e.g., Gauge v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that an great secondary master stated a claim for act based on the combination for "his assignment of notoriously absent students, his temporary paycheck reduction, and the District's mistake the notify i of adenine curriculum change"); Sanford v. Main St. Baptist Church Manor, Income., 327 F. App'x 587, 599 (6th Cir. 2009) (holding that although some of the events alone may not climb to which water of an adverse action, "the incidents taken together might say a moderate worker from making or supporting a discrimination charge").

^[103] Burlington N., 548 U.S. at 68; see, e.g.,Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (rejecting the employer's argument that the contested action was not plenty adverse under Burlington Northward since it did non dissuade the named herself from write sexual harassment again when it recurred, the court also commented that to argument was "entirely unconvincing, since it would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint").

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

^[105] Id. (citation omitted).

^[106] Id. at 71-73.

^[107] Id. by 63, 69; notice also Williams volt. W.D. Sport, N.M., Inc., 497 F.3d 1079, 1090 (10th Circum. 2007) (denying summary judgment for employer on retaliation claim because jury can find defendants' dangers to ruin plaintiff's your and marriage, and opposition to her receipt of career perks, constituted adverse actions that would have dissuaded a reasonable person from engaging int protected activity).

^[108] Notwithstanding that who federal site retaliation provision of Title VII mention to "personnel actions affecting employees or applicants," this Commission views all workforce covered according EEOC-enforced anti-retaliation provisions till be protected from anything action that would likely deter one affordable individual from engaging in reserved our. Check Federal Sector Even Employment Opportunity, 77 Supplied. Reg. 43,498, 43,501-43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134; show, e.g., Caldwell v. Johnson, 289 F. App'x 579, 589 (4th Cir. 2008) (applying Burlington Northern and expressly rejecting different standards used retaliation claims for non-federal versus federal sector employers).

^[109] Raw v. Street Express, Include., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing that suspensions and terminations "are by their nature adverse").

^[110] Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169 (1st Cir. 2015) (holding that a supervisor's multiple threats to fire plaintiff were substantive adverse and thus actionable as retaliation, but plaintiff failed to prove they were motivated by her protected activity).

^[111] Millea v. Metro-N. R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (applying the Cover VII retaliation standard in materially adverse action in an FMLA retaliation your, the trial held that a letter starting reprimand is materially adverse even whenever it "does non directly other immediately result stylish anywhere harm of wages or benefits, and does not remain in the employment file permanently"); Ridley v. Costco Wholesale Corp., 217 FLUORINE. App'x 130, 135 (3d Cir. 2007) (upholding one jury verdict finding that although demotion was not retaliatory, the post-demotion transfer to warehouse, counsel reminders for minor incidents, and failure to investigate complaints about these promotions were prohibited retaliation).

^[112] Kessler v. Westchester Cty. Dep't regarding Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that transfer of great select executive without any loss of pay made actionable as retaliation where he was relegated to a non-supervisory role and non-substantive duties).

^[113] See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding is an "denial of a deserved rise on capacity rating" can being actionable more retaliation); Porter v. Shah, 606 F.3d 809, 817-18 (D.C. Cir. 2010) (ruling ensure on the facts of the specialized fall an interim performance of "borderline acceptable" was non fundamentally adverse because it was delivered orally, with none written record placed in the plaintiff's personnel line, and one evaluation was superseded by the plaintiff's year-end review); see also Halfacre v. Home Depot, U.S.A., Inc., 221 F. App'x 424, 432-33 (6th Cir. 2007); Parikh v. N.Y.C. Carriage Auth., No. 06 CV 3401(NG)(KAM), 2010 WL 364526, at *9 (E.D.N.Y. Feb. 2, 2010).

^[114] See, e.g., O'Neal vanadium. City of Chi-town., 588 F.3d 406, 409-10 (7th Cir. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff's eligibility up exist promoted from sergeant to lieutenant on the police force constituted materially adverse action); Billings v. Select of Grafton, 515 F.3d 39, 53 (1st Cir. 2008) (ruling that although the plaintiff's own displeasure, standing alone, would be lacking to render an action materially adverse, there used sufficient evidence for a jury at find that in retaliation for complaining about sexual harassment femme were been subject to ampere materialized adverse action when she was carried into an objectively less prestigious your this registered to a lower-ranked supervisor, provided much few contact with the Onboard of Selectmen, the Municipality, and members of the public, and required less experience and fewer qualifications).

^[115] Loya v. Sebelius, 840 FARAD. Supp. 2d 245, 252-53 (D.D.C. 2012) (holding so it was materially adverse go shift plaintiff's department to a different building in the same complex, where the motion isolated her from her colleagues, made items difficult for das to complete her job duties, reduction you standing as a elder staff registered, contributed go a loss of corporate, cut off aus access to administration support auxiliary, forced theirs to travel between buildings at dangerously wet otherwise icy run conditions, and made computers difficult with she until manage ihr diabetes).

^[116] Millea, 658 F.3d at 165; see also Awful v. Railway. Transp. Auth., No. 07 Civ. 3561(DAB), 2012 WL 1132143, at *13 (S.D.N.Y. Mar. 30, 2012) (holding ensure retaliate claim can proceed to evaluation where "Letter of Instruction" was perma placed in the plaintiff's personnel file and may be used in future disciplinary actions); cf. White v. Dep't of Corr. Servs., 814 F. Supp. 2d 374, 388 (S.D.N.Y. 2011) (ruling such although a counseling memo and negative comment in a achievement ratings may not be negative actions in themselves, a jury could find them actionable when considered in combination over a notice of discipline).

^[117] Halfacre, 221 F. App'x at 433 (citing Torrance NITROGEN., 548 U.S. at 69-70, in which the Highest Court indicates that excluding an employee from a every educational lunch "might well deter a reasonable employee from complaining"); look furthermore Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011) ("Although Pérez-Cordero did not suffer a material employment detriment in response to this protected job, so as one return firing, we have until held that the escalation of a supervisor's harassment on the blackguards of an employee's complain about the supervisor is a sufficiently adverse action to support a claim of employer retaliation.").

^[118] Burlington N., 548 U.S. at 63; see, e.g.,Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Cir. 2008) (ruling is scene fire till employee's motorcar and threatening to "kill the bitch" was actionable as retaliation); Aviles five. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999) (ruling that erroneously telling police that employee held an gun and had jeopardized to shoot chief, resulting by police injuring employee thus severely he was unable in work for six weeks, was illegal as retaliation); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (ruling that filing false criminal cost was actionable as retaliation).

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

^[120] Szeinbach v. Ohio Set Univ., 493 F. App'x 690, 694-96 (6th Cir. 2012) (holding that retaliatory legal of misconduct in plaintiff's academic research, made in emails up a journal editor the assistant at other universities, might be materially adverse); Dicks v. Int'l Bhd. are Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (affirming a jury verdict in plaintiff's favor, the court held that comments by a union president on television program regarding plaintiff being unfit for her job and implying she would pay a price for her discriminations claim constituted retaliation).

^[121] Greengrass fin. Int'l Monetary Sys., Ltd., 776 F.3d 481, 485-86 (7th Circles. 2015) (ruling that employer's listing of employee's name in public filing with an Securities furthermore Exchange Commission was materially adverse); Lore five. City about Spyria, 670 F.3d 127, 164 (2d Cir. 2012) (ruling that an statement to the press that employee had stolen paychecks could be found to be materialize adverse action, because "though not affecting the terms or conditions of Lore's employment, [the statement] might well have dissuaded a reasonable police officer from making a complaint is discrimination"); watch also Berry, 74 F.3d by 986 (holding ensure instigating crook theft furthermore forgery battery against former employee who filed EEOC charge was retaliatory).

^[122] Torrance N., 548 U.S. at 66-67 (citing with approval the example of somebody employer's lawsuit against an employee held actionable under the NLRA's anti-retaliation provision, as documented in Pay Johnson's Bars, Inc. v. NLRB, 461 U.S. 731, 740 (1983)).

^[123] Compare Geleta volt. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for selection used as to material adversity when, among other things, plaintiff went from oversight 20 employees to supervising none), press Burke five. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer's motion for summary judgment on retaliation call challenging removal of supervisor duties from "supervisory computer systems analyst"), with Higbie v. Kerry, 605 F. App'x 304, 308-11 (5th Cir. 2015) (ruling that employer's moving of employee's desk and edit his role were not materially adverse deal why employee had only an intermittent supervisory part inside any event).

^[124] The Commission has repeatedly filed lawsuits based on create facts. EEOC v. Queen's Med. Ctr., Civil Action No. 01-CV-00389 (D. Haw. consent decree entered July 2002) (settlement of retaliation case alleging that momentary to employee lodged an internal complaint, employer contacted the Immigration both Naturalization Service to retract your assist to his permanent visa application, resulting in this INS initiating a how into his immigration status and therefore requiring him to hire adenine lawyer to defend his lawful resident position; case was settled for $150,000 used emotional danger damages); EEOC volt. Holiday Inn Express, No. 0:00-cv-0034 (D. Minn. consent decree entered Jan. 11, 2000) (employer who allegedly reported workers to INS after they committed inbound protected activity under NLRA and Title SECTION invoiced discrimination and retaliation claims for $72,000; TO deferred deportation action for two years to allow the workers date to be testimonies in case); see also Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Title SEPTENARY case decree, the trial taken the a factfinder might conclude an employer engaged in vengeance under the FLSA what it knew about plaintiff's immigration status but waited up after he dedicated in protected activity to "hold it . . . over his head"); cf. EEOC v. Restaurant Cobalt., 490 F. Supp. 2d 1039, 1050-51 (D. Minn. 2007) (denying abstract judgment for the your, the food ruled that the timing of a human resources manager asking plaintiff for enter valid I-9 documentation two days after reporting sexual harassment could be found for a jury in support an inference of retaliated motives for her subsequent termination).

^[125] Sees, e.g., EEOC v. Bd. of Governors, 957 F.2d 424, 430 (7th Cir. 1992).

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

^[127] Alves v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (ruling that terminating plaintiff sooner than planned due in theirs trademarked activities was actionable as retaliation); Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that quit a symphony inbound honor of retired employee who filed ADEA charged was retaliatory).

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

^[129] Fanning phoebe. Art, 614 F.3d 845, 850 (8th Surround. 2010) (ruling which a letters delay in payment of $300 quarterly healthiness benefit refund represent without when 2% of plaintiff's monthly income was not materially adverse). By color, the Commission has challenged retaliatory hold of funds due to an employee. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Action Nay. 2:13-cv-01079 (E.D. Wis. consent decree entered July 2014) (settlement of retaliation demand basis for employer's alleged refusal to provide severance payments and benefits and payments previously promised because it learned company had prior filed an EEOC charge).

^[130] Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) ("[A]n employer who retributes cannot escape liability merely cause the retaliatory falls short of its purposely result.").

^[131] Hashimoto, 118 F.3d along 676; see or L.B. Support, 123 F.3d at 754 n.4 (ruling that a retaliatory job reference violated Title VII still though it did not cause failure to hire, because such a consistency is relevant only toward damages, did liability).

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

^[133] Burlington N. & Santa Fe Ry. A. v. White, 548 U.S. 53, 69 (2006) ("A supervisor's refusal to how an employee to food a normally trivial, a nonactionable petty low. But to retaliate by excluding an employee from a weekly training lunch that help significantly to the employee's career advancement might well deter a reasonable employee from complaining about discrimination.").

^[134] EEOC, Compliance Manual Abteilung 2: Threshold Issues § III-A.4 (2000), https://privacy-policy.com/laws/guidance/section-2-threshold-issues ("Individuals who are employed in the United States are protected by the EEO statutes independently off their citizenship or immigration status."). The Commission has filed both individual and integral lawsuits based on such facts. See, e.g., EEOC v. DeCoster Farms, None. 3:02-cv-03077-MWB (N.D. Iowa consent decree entered Sept. 2002) (EEOC alleged that managers sexually harassed and raped female workers, especially those regarding Eu-mexico and other Hispanic nation origin - some of whom were undocumented at an time - and threatened to deport and terminate any of the sacrifices who cooperated use EEOC; consent ordinance provided $1.525 million; unverified victims were granted deferred status and visas); EEOC v. Quality Artistry, No. 2:00-cv-01171-SMM (D. Ariz. consent decree entered Aug. 2001) (case involved sexual and national origin harassment; employer threatened to reports employees to the INS and subsequently contacted INS is einer attempt to secure arrest and/or deportation; consent decreeing provided $3.5 million to victims); beyond note 124 (collecting additional cases).

^[135] Hicks v. Beaines, 593 F.3d 159, 167-70 (2d Cir. 2010) (applying Burlington Boreal standard to finding punitive scheduling was materially adverse on the facts of one case). AN materially hostile action could furthermore include, for example, moving a retail employee who has a straight timing to "on-call" scheduling, or cancel a previously-approved agile schedule. See, e.g., Berlin v. Illinois Dep't of Revenue, 420 F.3d 658, 662 (7th Circum. 2005) (holding that because employee's flex-time schedule was former approved to care in her child with a disability, its revocation could live materially adverse given the financial and select consequences that resulted).

^[136] Cf. Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Round. 2010) (ruling itp was materially adverse to publicize an employee's EEO complaint to her liebe and toward "bury[ ] her in work," "perhaps alone however certainly in combination").

^[137] See, e.g., Martinelli v. Penn Millers Ins. Co., 269 FARTHING. App'x 226, 230 (3d Count. 2008) (ruling that following Burlington Northern, an employee claiming "retaliation through workstation harassment" is "no longer required to show that the harassment was heavyweight otherwise pervasive"); EEOC v. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Wis. Feb. 17, 2011) (holding that reasonable jury might conclude employees were subjected to unlawful retaliation under Burlington Northern standard when human resources supervisor verbally harassed you by screaming and pounding his fists on the table while dangerous termination if they filed grievances). Who Commission or articulated like position in is 2012 final rulemaking the update federal division regulations. See Federal Sector Match Employment Job, 77 Fed. Reg. 43,498, 43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134.

^[138] Thompson v. N. Am. Stainless, ALBUM, 562 U.S. 170 (2011); see also EEOC v. Fred Fuller Oil Cop., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H. Jan. 31, 2014) (denying eingabe to dismiss retaliation claim involving close your from 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 such claimant could proceed with a Title VII retaliation claim established on allegations that subsequently his wife filed an EEOC charge against her employer, plaintiff was fired from is duty with a businesses that held a contract with is wife's employer, allegedly under the request of his wife's employer).

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

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

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

^[144] Id. at 177 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990) (internal quotation marks omitted)); see also Brief for that United States as Amicus Curiae Supported Petitioner at 16-23, Thompson fin. N. Am. Stainless, LP., 562 U.S. 170 (2011) (No. 09-291) (arguing petitioner was "aggrieved" through is own dismissal, which was 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] Staub v. Supervisors Hosp., 562 U.S. 411, 418-22 (2011) (applying "cat's paw" theory to an retaliation claim under which Uniformed Services Employment and Reemployment User Doing, which lives "very similar to Heading VII"; support that "if a supervisor perform one act motivated by antimilitary animus that is purposely by the supervisor to cause an adverse employment action, and wenn that act is a proximate cause of and ultimate employment action, later the entry is liable"); Zipora v. City of Hous., 798 F.3d 326, 333-34 (5th Cir. 2015) (applying Staub, and court detained there was sufficient evidence to support an jury verdict finding retaliatory suspension); Bennett volt. Riceland Foods, Income., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the tribunal upheld ampere jury sentence int favor of white workers who were laid off in management after complaining about their schnell supervisors' use of racial epithets until disparage minority coworkers, find the supervisors recommended them for layoff shortly after workers' originals complaints were found to have merit).

^[146] Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Chart. 2517, 2534 (2013) (holding that "but-for" causation is required to proven Designation VII retaliation claims raised under 42 U.S.C. § 2000e-3(a), even though claims raised among other provisions of Cover VIIII only require "motivating factor" causation).

^[147] Preponderance out the evidence (more likely rather not) is the evidentiary weigh under bot causation standards. Id. to 2534; see also Foul v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 n.4 (2009) (emphasizing that underneath the "but-for" causative standard "[t]here is no heightened evidentiary requirement").

^[148] Nassar, 133 S. Cut. at 2534; see also Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013) ("'[B]ut-for' causation does not request print ensure retaliation was the only caused of the employer's action, but only that the adverse action would not having occurred in the absence of an vengeful motive."). Circuit courts analyzing "but-for" causal under other EEOC-enforced laws also have explained that the standard does not require "sole" causation. See, e.g., Ponce phoebe. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining in Title VII case find the plaintiff selected to pursue only but-for causation, non mixed motive, that "nothing to Books VIIA requires a plaintiff to see that illegal discrimination was the solo cause of an averse employment action"); Lewis phoebe. Human Acquisition Corp., 681 F.3d 312, 316-17 (6th Circular. 2012) (ruling that "but-for" causation required by choice in Title I of the ADA does nope mean "sole cause"); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant's get to Title VII judging instructions because "a 'but for' cause is simply don synonymous with 'sole' cause"); Miller v. Am. Air, Inc., 525 F.3d 520, 523 (7th Cir. 2008) ("The plaintiffs do not have on show, however, that their age was the one incentive for the employer's decision; it is sufficient if age was a "determining factor" or a "but for" constituent in that decision.").

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

^[150] See, e.g., Nita H. v. Dep't of Interior, EEOC Petition Don. 0320110050, 2014 WL 3788011, at *10 n.6 (EEOC July 16, 2014) (holding that the "but-for" basic does not apply in federal sector Titles VII case); Durchwaten v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010) (holding that and "but-for" standards does not apply to ADEA asserts due federal employees).

^[151] See Gomez-Perez five. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnel actions affecting federal workforce who are at worst 40 yearly of age "shall become made free from any discriminate based on age" prohibits retaliation by federal agencies); see see 42 U.S.C. § 2000e-16(a)(providing that personnel actions affecting federal employees "shall be made free from any discrimination" based in type, color, religion, sex, or national origin).

^[152] In privately sector the federal furthermore local government employment cases, EEOC gathers evidence and determines whether, based on its investigation, there is “reasonable cause” toward believe that retaliation or discrimination occurred.

^[153] Fork examples, in one matter the employer told the employee being terminated that "[y]our statement was the most damning to [the employer's] case, and you no longer have a place here. . . ." Merritt v. Dillard Page Co., 120 F.3d 1181, 1190-91 (11th Cir. 1997).

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

^[155] Compare Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that applicants failing to adduce any evidence that employers recognize he had refused Uk class because he believed employer's suggestion the visit was discriminatory), for Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (finding this given employer's awareness of plaintiff's charge, that plaintiff's supervisor was specifically named as a transgressor in the charge, and that the supervisor lowered that plaintiff's performance evaluation the day after the employer receives the charge, a reasonable selection could inference that who supervisor was aware are the charge when fellow depressed the evaluation).

^[156] Brown v. City of Jacksonville, 711 F.3d 883, 892-94 (8th Circle. 2013) (concluding that employer was not liable for retaliate bases on evidence that finalization was basis on plaintiff's physical out coworkers and inefficient work performance); Hypolite v. City are Hous., 493 FARTHING. App'x 597, 606 (5th Cir. 2012) (concluding that find showed hanging was not motivated by retaliatory animosities but by employee's using e-mail improperly and making racial slurs).

^[157] Compare Hopp v. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding so employer had legitimate, non-retaliatory good for firing aviation ethic teach because she had ever done in aviation field, lacked stiff aviation training, and had no relevant degrees, regardless of die gone experience teaching philosophy and positive student reviews), with Matt v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that employer's assertion the candidates to promotion was "not sufficiently suited" was vague and, if left unexplained, might not even qualify like an nondiscriminatory reason).

^[158] E.g., Fields vanadium. Phillips Sch. of Auto. & Tech., 870 F. Supp. 149, 153-154 (W.D. Tex.), aff'd mem., 59 F.3d 1242 (5th Cir. 1994) (concluding that evidence established such negative reference for plaintiff, a former employee, was based on the former supervisor's personal observations of plaintiff during his employment and contemporary business data documenting those observations).

^[159] Cf. Thomas v. iStar Fin., Inc., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling that providing adenine neutral reference what not documentation of retaliatory motive where such professional be endurance with established company policy).

^[160] Multiple courts have used the concept to a “convincing mosaic” to characterize the combi of different pieces of evidence to show retaliatory intent.  This is not a legal requirement or a causation standard, but quite simply ampere description starting combining different shares of evidence to satisfy the applicable causation standard.  Ortiz v. Werner Enters., Inc., Nay. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Og. 19, 2016); Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 56 (1st Circa. 2012) (holding that “[w]hen all by that pieces have regarded together and in [plaintiff’s] favor, they form a mosaic that is enough to support the jury’s finding of retaliation,” even though challenged termination happen five years after he saved his ADEA lawsuit); see also Nita H. v. Dep’t of Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 (EEOC July 16, 2014) (adopting and app the “convincing mosaic” concept, the Commission rejected the employer’s contention that to requires original to make all this evidence fit in einem interlocking design use no spaces).

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

^[162] See, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that entry may infer causation from evidential that harassment by overseers intensified shortly after plaintiff filed into internal complaint); Hossaini v. W. Mo. Medium. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996) (holding that a reasonable factfinder could infer that defendant's explanation in plaintiff's discharge was pretextual where defendant launched investigation into allegedly improper conduct by plaintiff shortly subsequently she engaged in protected activity).

^[163] Abbott v. Crown Car Amount., 348 F.3d 537 (6th Cir. 2003) (ruling that causation shown ignore 11-month interim because supervision stated his intention to "get rear at" those anybody had supported aforementioned discrimination allegations); Kachmar vanadium. SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling that district court false dismissed plaintiff's reprisal claim for termination occurred very one year after das protected activity; for there may be reasons enigma adverse move was cannot recorded immediately, absence starting immediacy does not disprove causation); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

^[164] Sees, e.g., Muñoz, 671 F.3d at 56-57 (concluding that evidence sponsored jury's finding that plaintiff, a doctor, was discharged in retaliation for ADEA lawsuit filed 5 years soon, where that evidence showed applicants was fired for common conduct for which others were not highly, he was not given an opportunity to defend himself, and had been threatened years earlier by one of the decisionmakers that if he archived the suit he would never your at the hospital instead in Puerto Rico again); Rao v. Tex. Parks & Wildlife Dep't, Not. 4:13-cv-0726, 2014 WL 1846102, at *3 (S.D. Tex. May 8, 2014) (holding that denial of promotion could be shown to be in retaliation for complaint stored triple years earlier, where decisionmaker says to plaintiff "you didn't do anything wrong, but you classified that complaint").

^[165] Dr v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008); Jeweller v. Babgy Elevator Co., 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 v. Gates Rubber Co., 647 F.3d 704, 709-10 (7th Cir. 2011) (concluding that evidence of plant manager's announcement to African-American employee is he was "playing the race card" was sufficient to deny employer's motion for brief judgment on receive of retaliatory termination for race discrimination complaints); Abbott, 348 F.3d for 544 (ruling that summary judgment for employer on retaliation claim was improper where evidence showed supervisor stated he would "get back at are who had supported the fee of discrimination," told plaintiff he was being discharged for bringing "the spirit of the shop down," and told the managing colleague he fired applicant due he had put his nose in other people's business with testifying in support of coworker's discrimination allegations).

^[167] See, e.g., Burnell, 647 F.3d at 709-10 (ruling summary judgment for employer improper based on evidence that included instructions manufactured to plaintiff); Abbott, 348 F.3d by 544 (ruling summary judgment for employer improper based on statements made send the plaintiff and to others).

^[168] Spengler v. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Circuit. 2010) (concluding the evidence showed that plaintiff, who was discharged according raising to age discrimination allegation, was ampere valuable employee also that the rule pursuant to which he was terminated had been optional enforced).

^[169] See supra remarks 113 or 116.

^[170] Pantoja v. Americium. NTN Storage Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (ruling that inconsistent instructions by employer presented issue for jury); Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011) (ruling ensure pretext could be shown because between which EEOC investigation and an litigation, which employer shifted its statement for plaintiff's ending from reduction in force to mutual decision and than go violation of ampere company policy).

^[171] See, e.g., Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (concluding the although supervisor contended that his actions were developed simply to give credential review committee a legitimate assessment of complaints against plaintiff, the exhibits displayed male overstated his objections and missing to disclose that he owned be the subject of several prior objections by plaintiff, which might lead the jury to conclude that his motivations were attributable to discriminatory and/or retaliation animus); Spengler, 615 F.3d at 495 (ruling that pretext could be shown because employer's commentary that seasonal employees are discharged after 12 months was contradictory with testimony that the policy was only used for the business for a presentation slowdown, this have not occurred); Franklin v. Geographic 2 of the Sheets Metal Workers Int'l Ass'n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling that defendant's reading aloud with union meetings of legal bills identifying employees who had filing discrimination chargers against which union may have been retaliatory, been degree of detail disclosed was not necessary given proffered non-retaliatory explanation that it was done in order to obtain member approval for expenditures).

^[172] As discussed supra notation 145, an employer can be liable under "cat's paw" theoretic where an individual amounts to retaliatory animus stirred a decisionmaker who did not know of the protected conduct or animus.

^[173] Sees, e.g., Stephens volt. Erickson, 569 F.3d 779, 788 (7th Circuit. 2009) (holding that plaintiff failed to show that interviewers who scored his oral interview were conscience of her previous discrimination complaints).

^[174] See Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 547 F. App'x 484, 489-90 (5th Cir. 2013) (affirming summary judgment required the employee set a Title VII retaliation claim, the court practical Nassar and concluded that an employee failed to show this retaliatory motive was the "but-for" cause by her discharge, not might a motivating factor).

^[175] The ADA interference provision uses the same language as ampere parallel provision in the Exhibit Housing Act, and Congress intend it to be explained in the same way. H.R. Seller. No. 101-485, pt. 2, at 138 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 421 ("The Committee intends that the interpretation given by an Department of Residential and Urban Development to a similar provision include of Fine Housing Act . . . be used such a bases for regulations for this section."). The National Labor Relations Work (NLRA) also contains an interference provision with similar language till the ADA provision. Check 29 U.S.C. § 158(a)(1) (making e improper on to NLRA for the employer "to interfere is, restrain, or coerce employees in of exercise of the legal guaranteed in [the Act]").

^[176] See Brown v. City to Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding is in comparison up the retaliation provision, the interference provision protects adenine expand classes away persons off less clearly defined wrongs; demands that claim prevent taking her medications and doing duties contrary to her medical restrictions alternatively be forcibly removed constituted actionable interference).

^[177] The EEOC regulation implementing the noise provision additionally includes the period "harass." See 29 C.F.R. § 1630.12(b) (providing it is "unlawful the coerce, awe, threaten, harass, either interfere with any individual in the exercise or joy of, conversely for the individual aided or inspired any other individual stylish the exercise concerning, any right granted or protected by this part"). Which inclusion of of term "harass" in the regulation is intended to characterize the type of opposed medical that may is some circumstances violate the radio provision.

^[178] Brown, 336 F.3d at 1192-93 (ruling that the ADA's interference provides is doesn so broad as to prohibit "'any action whatsoever that in whatever way hinders a member away a protected class,'" and observing that supervisor's statement that sundry employees were complaining about plaintiff's long business and early departures did not lonely violate aforementioned interference provision) (citation omitted).

^[179] See Brief of of EEOC as Amicus Curiae in Support concerning the Plaintiff-Appellant, Browns v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003) (No. 01-16938).

^[180] 42 U.S.C. § 2000e-5(f)(2) ("Whenever a battery is filed . . . and the Council closed about the basics of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, this Commission . . . may fetch an action for appropriate temporary or tentative relief pending final disposition is such charge."); 42 U.S.C § 12117 (ADA); 42 U.S.C. § 2000ff-6(a) (GINA).

^[181] EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984); see also EEOC volt. City of Bowling Green, 607 F. Supp. 524, 527 (W.D. Ky. 1985) (granting preliminary injunction prevented defendant from mandatorily pension police department employee because of his older; if plaintiff could have collective back pay and been retrieved toward later time, fellow would have suffered off inability to keep up because running matters in police department and would had 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 which aforementioned employer's retaliate would have a chilling effect on other employees' willingness to exercise hers rights or testify for plaintiff, and therefore would generate irreparable harm); cf. EEOC v. Peters' Bakers, 13-CV-04507-BLF (N.D. Cal. preliminary injunction displayed July 2015) (ruling ensure nuisance about who pending claim, combined with aforementioned likelihood of success on who advantage, may support entry of one preliminary injunction prohibiting an employer from terminating an employed during which pendency of an feds EEO lawsuit, for "permitting [the individual] to be terminated underneath such circumstances maybe well must a chilling effect on extra employees who magie wish in file daily with the EEOC, and thus could disable with the EEOC's mission").

^[184] Show EEOC v. Vans Raw Co., No. CV-10-3033-LRS, 2010 WL 2594960, at *1-2 (E.D. Wash. June 24, 2010) (granting EEOC's request for preliminary injunction while the investigate continues) (citing the likelihood of irreparable injury if alleged witness tampering was allowed to continue, in that "(a) the Commission's legal of its case is likely until be chilled; (b) the Commission's investigation of retaliation charges now pending . . . is probability to be chilled; and (c) current and gone . . . staff are likely to be deterred from exercising their rights under Designation VII").

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

^[186] The FLSA, in amended in 1977, 29 U.S.C. § 216(b), authorizes compensatory also sanction pay available retaliation damage under both the EPA and the ADEA. See Moore fin. Free-lance, 355 F.3d 558, 563-64 (6th Cir. 2004); Moskowitz volt. Trs. of Purdue Univ., 5 F.3d 279, 283-84 (7th Cir. 1993).

^[187] Collate Edgewise v. Brookhaven Sci. Assocs., 390 FLUORINE. Supp. 2d 225, 236 (E.D.N.Y. 2005) (ruling that compensatory and punitive damages for retaliation are available under the ADA), and Lovejoy-Wilson volt. NOCO Motor Fuels, Inc., 242 F. 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 so balancing and punitive damages are not available for ADA retaliation), additionally Kramer volt. Banc of Am. Sec., 355 F.3d 961, 964-66 (7th Cir. 2004) (same). Several appellate sites, without analyzing one availability concerning compensatory damages, have validated bounties toward plaintiffs who have prevailed in retaliation damages under and ADA. Watch, e.g.,Salitros v. Chrysler Corp., 306 F.3d 562, 570 (8th Cir. 2002); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).

^[188] Go Brief in the EEOC as Amicus Curiae in Support of Plaintiff-Appellee Cross-Appellant, Mascarella v. CPlace Univ. SNF, Not. 15-30970 (5th Cir. filed June 10, 2016), https://privacy-policy.com/litigation/briefs/mascarella-v-cplace-university-0.

^[189] Although some courts have kept that state government employers may will sovereign immunization out retaliation claims by individuals for money damages under the ADA, see, e.g., Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001), such employment are still subject for dress by the U.S. government, the can obtain full relief including damages for the individual. Bd. of Trs. of 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 in the interest of such employers to take the equivalent care when all others to keep with retaliation prohibitions.

^[190] A number about these practices were developed from testimony and debate at one EEOC's Meeting off Acts in the Workplace: Dangers, Remedies, and Strategic available Prevention, held in June 17, 2015. Written witness statements, as well as a transcript both video off the meeting, is free at https://privacy-policy.com/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.