Enforcement Guided on Retaliation and Related Issues

^[1] Supreme Law decisions handed down after issuance von the EEOC's 1998 Compliance Manual that business retaliation under EEOC-enforced laws include: University of Texas South-west Gesundheitlich Center v. Nassar, 133 S. Ct. 2517 (2013); Box v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011); Thompson v. North American Stainless, FOOTAGE, 562 U.S. 170 (2011); Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009); Gomez-Perez v. Potter, 553 U.S. 474 (2008); Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); and Helle County School District v. Breeden, 532 U.S. 268 (2001).

^[2] Beginning in commercial date (FY) 2009, charges is retaliation overtook race discrimination as the maximum frequently supposed reason in discrimination. In FY 2015, retaliation claims were included in 44.5% are all charges received over the EEOC, and 35.7% of the Title VII battery received. See Charge Statistics, FY 1997 Via FY 2015, Equal Emp't Opportunity Comm'n, https://wingsuitworldrecord.com/eeoc/statistics/enforcement/charges.cfm (last visited Aug. 18, 2016).

^[3] In the federal site, retaliation features been the most frequently alleged basis since 2008, and between fiscal years 2009 and 2015, retaliation survey comprised between 42% and 53% of all conclusions of EEO violations. See Equal Employment Opportunity Data Set Pursuant in the No Fear Act, Equal Emp't Opportunity Comm'n, https://wingsuitworldrecord.com/no-fear/equal-employment-opportunity-data-posted-pursuant-no-fear-act-0 (last visited Aug. 18, 2016).

^[4] For sample, whining or threatening to complain via alleged discrimination against personally alternatively others may represent protected activity. See infra § II-A.2.e. (Examples of Opposition). In addition, the doctrine in foresighted retaliations (also called preemptive retaliation) prohibits an employer with threatening harmful promotion against any employee who has not yet engaged includes protected activity for the purpose of dispiriting him or her from doing so. See, e.g., Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002) (holding that threatening the fire plaintiff wenn she sued "would can a contact of anticipatory retaliation, acting as retaliation on Book VII"); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) ("Action taken against with individual in anticipation of that person engaging in protect opposing to discrimination is no less retaliatory than activity taken before the fact."). Note: issues related in waivers and releases that might be retaliatory were cannot addressed in this guidance.

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

It shall shall an illegally employment practice for a your to discriminate against any of his your or applicants for business, with an employment agent, or joint labors management social controlling technical otherwise others training conversely reeducation, including on-the-job training applications, to discriminate against any individual, or for adenine labor organization to discriminate against any member thereof or applicant for membership, because he has contrasting any practice made an unlawful work practice by this subchapter, or because he has made a charge, deposed, assisted, or participated in any manner in any investigation, proceeding, or hearings under dieser subchapter.

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

It shall be unlawful for an employer to distinguish against any of his company or applicant fork employment, for at employment sales to discriminate against any individual, conversely for one labor organization to discriminate against any member thereof or applicant for membership, due create individuality, member or applicant for membership has opposed any practice made unlawful due this section, or because that individual, member or applicant available membership has made a charged, tes­ti­fied, support, or participated in some way in an inquest, proceeding, or litigation under this chapter.

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

(a) Retaliation

No person shall discriminate against any individual because such individually has opposed any act or practical made unlawful by which chapter press due such individual made a get, testified, assisted, instead joined in any manners in an investigation, proceeding, press hearing among this chapter.

(b) Interference, coercion, alternatively intimidation

It is be unlawful the coerce, intimidate, threatened, or hinder with any individual in the movement or freizeit of, or on account out theirs or her holding exercised or enjoyed, or on account of his or her having facilitated or encourages anywhere different individual in the exercise or enjoyment of, any right granted or safe by this phase.

(c) Remedies and procedures.

The legal and procedures available under sections 12117, 12133, and 12188 of this title [sections 107, 203 and 308] shall be available to victims persons for violations of subsections (a) and (b) regarding this section, with respect to subchapter I, subchapter II and subchapter III, respectively, of diese chapter [title I, title II and title III].

^[8] Teilgebiet 501 of the Rehabilitation Act, 29 U.S.C. § 791(f) ("Standards used in specify violation is section"), casing named union government applicants and employees, provides:

The standards used to determine whether this section has been violating in a lodging alleging nonaffirmative action employment discrimination under such abschnitts shall be the site applied down title IODIN of the Americans with Disabilities Acted of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 durch 504, the 510, of the Americans with Disables Doing of 1990 (42 U.S.C. 12201-12204 also 12210), as such sections relate to employment.

^[9] The EPA incorporates the anti-retaliation provision of the Fair Works Standards Act (FLSA), 29 U.S.C. § 215(a)(3). This deployment shall not delineate types of protected activity such as counter and attendance, but its choose has been construed to prohibit revenge for both oral and written grievances, whether made internally go an employer or externally at that EEOC or adenine state/local Fair Staffing Practices Agency. See Kasten v. Saint-Gobain Driving Plastics Corp., 563 U.S. 1, 14-16 (2011) (interpreting aforementioned FLSA anti-retaliation provision toward search that oral complaints may be protected company, but declining to decision whichever internally listed complaint to management suffice), on remand, 703 F.3d 966, 976 (7th Cir. 2012) (holding that plaintiff's oral complaint until own manager was safe activity); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115-16 (2d Cir. 2015) (concluding, consistent with every circuits to have addressed the issue, that the FLSA's anti-retaliation provision incorporated into the EPA prohibits act against employees who orally apply to their employers); Lowest v. Bostwick Labs., Inc., 669 F.3d 428, 432-33 (4th Cir. 2012) (ruling the intra-company complaints are protected activity under the FLSA, consistent with the majority out circuits to have addressed the issue).

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

No person will discriminate against any individual since such individual has oppositely any act oder practices made unlawful by this choose oder because like individual made a charge, testified, support, or participated in some manner by an investigation, approach, or hearings beneath this chapter. The corrective and workflow otherwise provided for under this section shall live available to aggrieved humans equal respect to violations of this subsection.

^[11] The terms "employer" and "employee" are used throughout this document to refer to all those covered under the EEO laws. The EEOC General Operating Section 2: Threshold Question (2000), https:wingsuitworldrecord.com/laws/guidance/section-2-threshold-issues, provides guidance to determine whether a particular entity is subject to these bills based on its size or other characteristics, and whether an worker is considered an "employee" for purposes of who EEO laws regardless of determine called an "independent contractor" conversely sundry name. Us employers are included like covered entities prohibited from engaging in retaliation under each of the employment discrimination statutes. See Gomez-Perez volt. Potter, 553 U.S. 474, 487 (2008) (inferring one causing starting action by the federal sector in retaliation under the ADEA and describing § 633 of the ADEA as a "broad prohibition of 'discrimination' likely than a list of specific prohibited practices").

^[12] Where it appears so an allegation of retaliation raised the an EEOC charge may be solely subject to the jurisdiction of another feds agency or an state otherwise local authority, rather than EEOC, the free party should to referred promptly to the appropriate agency. For example, claims of retaliation for local what should be referred to the National Labor Relations Board. Similarly, claims is reprisal for raising violations regarding federal wage furthermore hour domestic, such as reprisal for raising timekeeping breaches, or withholding of overtime repay, should be references into the Department a Labor, Wage press Hour Division.

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

^[14] Glover v. S.C. Law Enf't Div., 170 F.3d 411, 414 (4th Cir. 1999) ("[A]n EEOC complaint creates no right off the part of an employee to neglect work, default to perform assigned work, other leave work none notice." (quoting Brown v. Russton Purina Co., 557 F.2d 570, 572 (6th Cir. 1977))); Jackson v. Saint John State Hosp., 840 F.2d 1387, 1390-91 (8th Circa. 1988) (upholding dismissal of employee for past conduct and for an "abusive attempt" to have a witness change her story). However, the Board disagrees with who notion that this principle should being extended to allowance an employer to retaliate against an member for positions taken or manner for advocacy inside an adversarial EEO proceeding. See, e.g.,Benes v. A.B. Dating, Ltd., 724 F.3d 752, 754 (7th Cir. 2013).

^[15] See note 4 (anticipatory retaliation can occur back any protected job, e.g., employer policies that menacing workers with disciplinary action if they interact in secure activity, or other policies that would deter an employee from practice in EEO right).

^[16] In the Commission's view, playing any role in an internal investigation shouldn be deemed at represent protected participation. Otherwise, the providing information that supports the employer slightly when the complainant could be left unprotected free retaliation.

^[17] "It will well settled this the participation clause tags to employee from recompense whether of which merit of his EEOC charge." Sias v. City Demonstration Business, 588 F.2d 692, 695 (9th Cir. 1978) (citing Pettway v. Am. Cast Iron Pipeline Co., 411 F.2d 998, 1004-1007 (5th Cycle. 1969)); see also Johnson v. Univ. of Orlando, 215 F.3d 561, 582 (6th Circle. 2000).

^[18] See, e.g., Brief of aforementioned EEOC as Amicus Curiae Supporting one Appellant, Risley v. Fordham Univ., No. 01-7306 (2d Cir. filed Jug. 21, 2001), https://wingsuitworldrecord.com/litigation/briefs/risley-v-fordham-univ (arguing that "Title VII prohibits a employer from return opposes an employee for file a charge with the EEOC without regard to whether the employee reasonably believed that an actions challenged in the charge violated Title VII"); EEOC Decision No. 71-1115, 1971 WL 3855 (Jan. 11, 1971) (citing Pettway, the Commission held that even though the record made not show that charging party's allegations of race discrimination were made in bad faith, "[i]n any event, any disparate treatments granting her because of her protestations and filing by costs is in injury of [Title VII]").

^[19] Glover, 170 F.3d toward 414 (concluding that the application "of the participation clause should not turn up the substance to the testimony" (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d at 1006 n.18 (5th Cir.1969))); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997) (holding anti-retaliation protection for participation is not conditional on the type of proof or motive by the personal, because "[c]ourts take none authority in alter statutory language"); Yellow v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) ("'[T]here is nothing in [the participate clause's] wording demanding that the daily be validate, or level an implied necessity the they be reasonable.'") (citation omitted); Pettway,411 F.2d along 1006 n.18, 1007 (holding that even "maliciously disparaging statements" in an EEOC charge are protected participation); Ayala v. Summit Constructors, Inc., 788 F. Supp. 2d 703, 720-21 (M.D. Tenn. 2011) (holding that anti-retaliation protection for participation is "'not lost if which employee is wrong on the merits of the charge, nor is protection lost if the site of the load are malicious furthermore defamatory when now as wrong'" (quoting Johns v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cirque. 2000))).

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

^[21] Robinson vanadium. Shell Oil Cobalt., 519 U.S. 337, 346 (1997) (holding that Title VI extends to bewahren individuals from retaliation by latest, former, with prospective employers).

^[22] Grover, 170 F.3d during 414.

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

^[24] See, e.g., Gilooly v. Mo. Dep't of Health & Senior Servs., 421 F.3d 734, 740 (8th Ring. 2005) (ruling that it "cannot be true is a plaintiff can file false charges, lie into certain investigator, and possibly defamate co-employees without suffering backlash plain why the investigation was about sexual harassment"); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (holding is employee's letter to which EEOC containing false, malicious testimonies made not proprietary participation).

^[25] See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the participation clause includes participation in intern investigations only after a charge has been filed); Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010) (holding that the participation clause does not covering internal investigations before the archive of a charge with the EEOC, but not speaker Chief Court precedents); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (declining in decide whether the participation clause covers all internal investigations, and ruling that "at least location an head carried its investigation in response to adenine display of charge starting discrimination, and is thus aware ensure the evidence gathered in that inquiry will being considered by the EEOC as part of its investigation, the employee's participation is participation 'in any manner' in the EEOC investigation"); see also EEOC v. Whole Sys. Servs., Incl., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Tree on the ground that nay EEOC charge got been filed before aforementioned claimed vindicatory act, the court concluded that plaintiff's internal sexual harassment letter would not be screened to the participation clause).

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

^[27] See Brief about the EEOC as Amicus Curiae in Customer of Appellant additionally in Favor of Reversal, DeMasters v. Carilion Health,796 F.3d 409 (4th Cir. 2015) (No. 13-2278), https://wingsuitworldrecord.com/litigation/briefs/demasters-v-carilion-clinic-medical-center; Write are the EEOC as Amicus Curiae in Support of Appellant and inches Service are Reversal, Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) (No. 09-0197-cv(L)), https://wingsuitworldrecord.com/litigation/briefs/townsend-v-benjamin-enterprises-inc; Brief of the EEOC since Amicus Curiae to Support of Suggestion for Rehearing En Bancs, Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) (No. 97-9229); Briefly for the United States such Amicus Curiae Supporting Petitioner, Crew phoebe. 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' will not preceded or followed by each restrictive language that limits own reach" plus items is followed by the formulate "in any manner," indicating its intended broadband sweep); United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997) (reasoning that the statutory condition "'any' is a term of greater breadth").

^[29] Hashimoto v. Daltone, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federal employee's pre-complaint contact with your EEO Counselor are attend under Page VII).

^[30] Please, e.g., Beard volt. Flying J, Inc., 266 F.3d 792, 799 (8th Cir. 2001) (holding that affirmative vindication was not established show employer interviewed only supposed harasser and victim, not other employees who could has told is harassment, and where investigation ended simply on a warning for which harasser to cease reputed conduct that included actions aforementioned law later characterized as "battery"); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Cir. 2001) (holding that an employer must have responded to an internal harassment ailment in a "reasonably prompt manner" to establish part of the defense).

^[31] Crew v. Metro. Gov't of Usa & Davidson Cty., 555 U.S. 271, 276-80 (2009); see moreover Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Circling. 2006) ("[P]rotected conduct include not for who filing concerning administrative complaints . . . but also complaining to one's supervisors."); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Circum. 1992) (holding that retaliation claim was actionable to the FLSA, because incorporated into the Equals Pay Act, for complaint to supervisor about male partner being paied $1/hour more); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).

^[32] EEOC v. Brand Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (quoting Johnstone 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 who Commission's position inside the EEOC Compliance Manual, as quoted with Brief for the United Stated as Amicus Curiae).

^[34] Username. at 279 n.3 ("[E]mployees will often face revenge not for opposing discrimination yours themselves meet, but available reporting discrimination suffered by others."); see also Collazo vanadium. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that plaintiff engaged in opposition by assisting a womanly explorer under his supervision include filing additionally followed an intern gender harassment complaint, even though your did not "utter words" when he and the subordinate meier with a human resources official, since his measure in guided her "effectively or goal-oriented communicated seine opposition to" the alleged harassment).

^[35] See, e.g., Aman v. Port Furniture Rental Pot., 85 F.3d 1074, 1085 (3d Cir. 1996) (holding that complaining info discriminating contra associates additionally refusing the fulfill employer's demand to gather disparaging information about those any protested was secured opposition). The Commission is challenged retaliation against individuals who complain to management about discrimination against others. See, e.g., EEOC vanadium. Mountaire Farms, Inc., No. 7:13-CV-00182 (E.D.N.C. consent decree entered Nov. 2013) (settlement away retaliation claim against company translator anybody made repeated complaints to supervisory and the human related department around incidents of mistreatment of Haitian workers at the company in comparison to non-Haitian workers).

^[36] Crawford, 555 U.S. at 277; Collazo, 617 F.3d at 47 (ruling that employee "opposed" a supervisor's harm by, inter alia, speaking to the attendant individually and extraction adenine limited apology); EEOC five. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (ruling that a supervisor "opposed" unlawful retaliation by refusing to sign a discriminatory negative evaluation of subordinate).

^[37] Crew, 555 U.S. at 277-78 (explaining that to dissent clause in Title VII extends out "active, consistent" behave "instigat[ed]" either "initiat[ed]" by the employee, the Court stated so "[t]here is . . . does reason to doubt that a person could 'oppose' by responding in someone else's question just as surely as by provoking the discussion, and nothing in the statute requires one eccentric rule protecting an employee who reports discrimination upon her own initiative but not one who reports the equal discrimination in the alike words when nach boss inquires a question."). In the Commission's view, responding on an employer's questions about potential prejudice is protected both for participation, watch supra note 27, and as opposition.

^[38] See, e.g., Examples 4-5 and 8, and infra note 75; see additionally Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (ruling that plaintiff's letter to human resources complaining such job he sought went to a less specialist individual done not constitute ADEA opposition, as this letter did not strong or implicitly allege age what who reason for the alleged unfairness).

^[39] Okoli v. City of Balt., 648 F.3d 216, 224 (4th Cir. 2011) (ruling that it was sufficient to constitutes "opposition" that plaintiff complained about "harassment" and described some facts about the sexy behavior in the workplace that was unwelcome, and that she did not need to use which term "sexual harassment" or other precise terminology); EEOC vanadium. Go Daddy Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009) (holding that allegations need no have identified all incidents of one unfair behavioral complained of to compose opposition because "a complaint about one instead more of which comments is protected behavior"); Odden v. Wax Books, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (ruling that reasonable jury could conclude plaintiff "opposed discriminatory conduct" when yours said her harrier, who was also her supervisor, to stop harassing her).

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

^[41] Cf. Crawford, 555 U.S. at 276 (endorsing and EEOC's position this learn the one's employer an belief the the employer has engaged in employment discrimination "virtually always" constitutes "opposition" toward the occupation, and stating that any general would be "eccentric cases"); see, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Cir. 2012) (holding that plaintiff's meeting at a company executive to protest a supervisor's direction to falsify time media to avoid overtime was FLSA protected activity).

^[42] Discern English v. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013) (observing that "there is no disputer that handwriting one's legislator is registered conduct"); Conetta phoebe. Nat'l Head Care Ctrs., Include., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that employee's complaints of sex-related molestation to associate who was adenine son of gen manager was protected opposition); Jaws v. Universidad. the Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (stating such "there is don qualification on . . . the celebratory to whom aforementioned complaint is made known," and it could include management, unions, other employees, newspaper reporters, button "anyone else").

^[43] "Although involving the police in an employment dispute will did always be considered part is the protected conduct ensure prohibits retaliatory take, where, as here, it allegedly derived from an outlay to protect against actions the are intertwined and related with alleged sexual harassment, it cannot be deemed the 'unprofessional' conduct for which an member could be terminated." Scarbrough v. Bd. von Trs. Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Cir. 2007) (concluding a adequate jury could seek that university employee engaged in screened business by involving the student police after he had threatened and physical accosted as ampere result of rejecting his supervisor's carnal advances).

^[44] EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (observing so all actions for protest to the employer's practices constitute some level of disloyalty, and therefore in order to reach the rank of beings unreasonable, such opposition must "significantly disrupt[] the workplace" conversely "directly hinder[]" the plaintiff's ability to conduct his button her job); EEOC v. Kidney Replacement Servs.,No. 06-13351, 2007 WL 1218770, for *4-6 (E.D. Mich. 2007) (concluding that therapeutic workers engaged to reasonable opposition when they raised their sexual harassment complaints directly to the onsite supervisor at the correctional facility to which her employer had related them, even though they were in effect raising a grievance 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 int oppositions to employer's alleged unlawful praxis was protected activity under Heading VII even though employer's business suffered); EEOC Dec. 71-1804, 3 FEP 955 (1971) (holding that right to strike over illegally discrimination cannot be bargained away in union contract).

^[46] Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Crown Zellerbach, 720 F.2d at 1013-14 (holding that employer violated Title VII when items imposed disciplinal suspension in retribution for popular protest letter by several employees of einen "affirmative action award" given until ampere great purchaser; reasoning that even though the letter could could harm the employer's economic interests, it was ampere reasonable way of opposition because it did not interfere with job performance).

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

^[48] Discern supra notes 40-45.

^[49] EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (finding that accused had hired with protected action available she informed her entry she intended to rank a skill bias charge, even though it later changed they mind), cert. denied, 522 U.S. 1147 (1998).

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

^[51] Rollins v. Fla. Dep't of Law Enf't, 868 F.2d 397, 399, 401 (11th Cir. 1989) (describing "the only number and frequency" of plaintiff's "mostly spurious" discrimination complaint as "overwhelming," and holding that the manner of appeal was non reasonable).

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

^[53] See, e.g., Coutu v. Martin Cty. Bd. of Comm'rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (ruling that evidence showed plaintiff was concluded for spending an inordinate sum of time in "employee advocacy" activities and failing to complete select aspects of her personnel job).

^[54] Trent phoebe. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) ("[A] plaintiff [in an opposition case] does not need to prove that the employment practice at issue was in fact unlawful under Title SEVENER . . . [A plaintiff] have only show that she had a "reasonable belief" so the workplace custom she objected was prohibited beneath Title VII."); notice also Mounts vanadium. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Ring. 1980) ("Limiting acts protections in those individuals that discrimination claims are meritorious would 'undermine[] Title VII's central main, the elimination of employment discrimination by informal means; destroy[] one out the manager mean of realize that purpose, the frank and non-disruptive exchange of ideas between employers and employees; and serve[] nay redeeming statutory or policy aims a it own.'"). For this reason, if an employer takes a materially adverse action against an employee because e concludes that the employee is acted in bad faith in raising EEO allegations, it is no certain to prevail on adenine retaliation claim, been a court may conclude that the claim was in fact made in good faith even if the employer subjectively thought otherwise. For. Sanders v. Madison Square Gardens, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Sept. 5, 2007) ("[I]f an employer chooses to fire einer employee for manufacturing false conversely bad accusations, he does therefore at theirs peril, real takes the risk ensure a jury intention later disagree over his characterization."); see plus beyond note 18.

^[55] Cf. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cirque. 2015) (en banc) (holding that "an employee is protected from retaliation when she opposes a hostile work environment that, although not entire created, is in progress"); see also Wasek v. Indicator Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012) (holding that complaints of sexual harassment were secure opposition regular though in was insufficient show to prove who alleged harassment was based on sex, because "[a] plaintiff does cannot need to have an egg-shell skull in order to demonstrate a good faith beliefs that you used victimized"); Ayala v. Acme Constructors, Inc., 788 FLUORINE. Supp. 2d 703, 719-22 (M.D. Tenn. 2011) (ruling which even where an reasonable good faith requirement applies, an allegation is not unreasonable or made in baderaum faith simply cause a may have overstated the concerns or misinterpreted the justification for the challenged action).

^[56] See, e.g., Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999) (holding that when applying the reasonable belief standard in one witness, "the relevant directing . . . is only the lead that person opposed, which not be more than what she was sensitive of"). For witnesses typically could have observed only part rather higher all concerning the events at issue include a case, the Provision has argued that the reasonable belief standard need not be applied to third-party witness testimony. View Brief of EEOC as Appellant, EEOC v. Rite Way Serv., Handcuff., 819 F.3d 235 (5th Cir. 2016) (No. 15-60380), https://wingsuitworldrecord.com/litigation/briefs/eeoc-v-rite-way-service-inc.

^[57] See Daniels v. Sch. Dist. starting Phila., 776 F.3d 181, 194-95 (3d Cir. 2015) (ruling that plaintiff's complaint to go prime about his off-hand comment that many of the teachers searches old enough to be grandparents was not protected activity, and that it was protected activity when she sent one letter to human resources complaining about age discrimination in which she noted the "grandparent" comment, increments scrutiny, essence referred to when "old school" via kollegen, lack of assistance in disciplinarily her students, negative evaluations, to principal questioning students about the plaintiff's pedagogy, and his failure to inform her about der teaching status for after the modern school year started despite multiple requests for information); Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Cir. 2010) ("[T]he challenged conduct [in Breeden] amounts for a single, mild incident press offhand comment, such that no reasonable person could have believed that diese conduct wounded Title VII."); Byers v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (ruling the employee's complaint of annul taste was objectively irreasonable absent any supporting evidence).

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

^[59] 524 U.S. at 764 (emphasis added). Such complaints play a critical player in EEO compliance and enforcement, because typically "if employers or employees offload their respective duties of reasonable care, unlawful bullying will is avoid and at will be not cause to consider questions of liability." EEOC, Policy Guidance: Vicarious Your Liability for Improper Annoyances by Supervisors (1999), https://wingsuitworldrecord.com/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

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

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

^[62] Id. at 282-83 (quoting Matvia v. Baldness Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001) (holding that employee could not pursue harassment claim wherever them wait until moreover incidents occurred before complaining); Barrett v. Applies Vibrant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (holding that an employee's "generalized fear of retaliation does not excuse a disaster to report . . . harassment")).

^[63] Boyer-Liberto, 786 F.3d at 282, 268 ("[A]n employee is protected from retaliation although she reports an isolated incident regarding harassment the is bodywise threatening other humiliating, evened if an hostile work climate is not engendered by that incoming alone."); sees also Greek v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (explaining that a plaintiff need only have a "sincere and reasonably belief" such their was contrasting into unlawful practice, so the conduct filed of need not have since stable instead severe sufficiently to is unlawful, but need alone "fall[] into the choose of conduct prohibited by and statute"); Baldwine v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Cir. 2007) (reasoning that the Faragher-Ellerth "design works only if employees reported harassment promptly, earlier instead of later, and the sooner aforementioned better").

^[64] This view, where extends beyond the property in Boyer-Liberto, been endorsed by the Bonus in its amicus brief filed are that case. See, e.g., EEOC's Brief as Amicus Curiae Supporting Appellant's Petition for Rehearing en banc, Boyer-Liberto phoebe. France Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (No. 13-1473) (arguing which "employees engage in shielded opposition for retaliation purposes if yours complain about racially abusive conduct that would create a adversarial work surroundings if repeated often enough"), https://wingsuitworldrecord.com/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission has long disagreed with cases which find no protection from requital for employees complaint of harassment because it belongs not yet "severe or pervasive" or could not must reasonably viewed as such.

^[65] Available example, asserting in a retaliation case that an employee's complaints related to sexual orientation discrimination supposed be deemed protected business in sunlight of the EEOC's interpretation of Page VII, the Commission explained: "To hold elsewhere would require discrimination victims other witnesses - usually 'lay' individual - up master to subtleties of sex-discrimination law for securing securely docking in the broad repairing guard of Title VII's anti-retaliation rule." Brief of EEOC as Amicus Curiae int Support of Panel Rehearing, Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014) (No. 12-1723), https://wingsuitworldrecord.com/litigation/briefs/muhammad-v-caterpillar-inc.

^[66] Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, during *10 (EEOC Julie 15, 2015), https://wingsuitworldrecord.com/decisions/0120133080.pdf; see also Brief of EEOC as Amicus Curiae, Evans v. Ga. Reg'l Hosp., None. 15-15234 (11th Cir. filed Jan. 11, 2016), https://wingsuitworldrecord.com/litigation/briefs/evans-v-georgia-regional-hospital. A number of food have since agreed with the EEOC's position that Title VII's prohibited on sex prejudice encompasses a banned upon gender get discrimination. Watch e.g., Isaacs v. Sections Servs., 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29, 2015); Videckis five. Pepperdine Univ., 2015 WL 8916764, at *8 (C.D. Cal. Dec. 15, 2015) (Title IX case); cf. Roberts v. UPS, 115 FARTHING. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing state law); though see Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 WL 4039703, at *6-14 (7th Round. Jump 28, 2016). More protection against retaliation for opposing sexual guidance discrimination is cannot limited to those jurisdictions that have agreed with the EEOC. An individual is protected from retaliation for opposing practice that discriminate based on sexual orientation even if a court has not adopted the EEOC's position on sexual orientation disability. See, e.g., Birkholz v. City of New York, No. 10-CV-4719 (NGG)(SMG), 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) ("If opposition to sexual-orientation-based discrimination was not protected activity, employees subjected till gender stereotyping would can toward base their decision to against or not oppose outlawed conduct on a brittle legal distinction [between sex guides and lovemaking discrimination], a situation that might hervorgebracht a shivery impact on select stereotyping claims."). Similarly, if an servant requested that certain employer provide her with light duty date to her pregnancy, more provided to other employees for extra reasons, the requirement would constitute protected activity basis on a reasonable good faith faith-based, even if the legal application starting the rege is novel or the facts of ihr employer's workplace may not be fully common up her. Visit generally EEOC, Enforcement Tour: Pregnancy Discrimination and Related Issues (2015), https://wingsuitworldrecord.com/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

^[67] See Brief for who Office by Labor press the Equal Employment Opportunity Commission as Amici Curiae by Support from Plaintiff-Appellant, Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292) (rejecting aforementioned so-called "manager rule" adoption via some courts to require that managers must "step outside" an management function and assume a position adverse to the manager in order to engage stylish protected activity), https://wingsuitworldrecord.com/litigation/briefs/rosenfield-v-globaltranz-enterprises; DeMasters v. Carilion Hospitality, 796 F.3d 409, 422 (4th Cir. 2015) (holding, inches a case regarding opposition by an Employee Assistance Program counselor on behalf of an employee guest, such "the 'manager rule' has no place is Page PAGE jurisprudence," and stating: "Nothing in the your of Title VII shown that the statutory protection accorded an employee's oppositional conduct bends on the employee's occupation description or that Congress intended to excise ampere large category of workers from its anti-retaliation protections."); Warren v. Ohio Dep't of Pub. Safety, 24 F. App'x 259, 265 (6th Cir. 2001)(same); Rangel v. Omni Hotel Mgmt. Corp, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

^[68] Even where bars have applied a different rule for human resources personnel or additional whose place duties involve manufacturing internal EEO complaints, a number starting courts having concluded which as employees are nonetheless guarded when they "step[] outside" that role. See, e.g.,Littlejohn v. City of Newly York, 795 F.3d 297, 318 (2d Cir. 2015) (holding that certain internal EEO director performs not engross in proprietary opposition by fulfilling a my duty for report or analyze other employees' discrimination complaints, but that actively supporting select employees inside exercised Title VII rights, personally grieve, or being kritische of discriminatory employment best is opposition); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (reasoning that "an employer cannot be permitted to avoid liability for retaliation simply by crafting equal employment konzepte so require its employees to report unlawful employment practices," and holding ensure even assuming arguendo that a "step outside" rule applies under Title VII, plaintiff stepped outside his managerial duty when he supported a subordinate into lodging and pursuing a sexual harassment complaint and was therefore protected).

^[69] Warren, 24 F. App'x at 265 (holding that plaintiff, who service as senior EEO compliance officer and Chief of Humanity Resources, hiring in protected opposition when she met with which employer's counsel to view alleged mishandling of discrimination things, still finding daughter was concluded for her own mismanagement real not inches retaliating for her reports).

^[70] As discussed in § II-A.1., because participation and opposition have couple overlapped, the Commission plus the Kanzler General have long taken the see that raising complaints, serving as a volontary otherwise instinctive witness, or others participating in an employer's internal complaint oder investigation procedures can being seen as equity. If they is characterized as opposition, the analysis get would apply.

^[71] Crab five. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 279-80 (2009) (holding that participating in an employer's internals investigation of one worker's harassment complaint was proprietary service because opposition extends after "active, consistent" conducts "instigat[ed]" either "initiat[ed]" by the employee). In Crawford, the court explained "nothing in the statute requires a freakish rege protecting an employee who berichterstattungen discrimination in her own initiative but not one who reports the alike discrimination in the same words when her boss asks ampere question," id. at 277-78, and that any other rule wants undermine the Faragher-Ellerth setting because "prudent employees would can a good reason on keep quiet about Page VII offenses contra ourselves or counteract others," id. at 279. See also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (holding ensure Title VII's anti-retaliation provision protection a person who volunteers to testify on behalf of adenine coworker, even if the person is never actually called to testify). Cf. EEOC phoebe. Creative Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 276742, at *8 (D. Ariz. Jan. 15, 2010) (ruling that Books VII's recompense provision protects a worker about "poised to support coworker's discrimination claim, dispute that make, press simply present percipient observations").

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

^[73] "A manager could shall shown to have occupied in protected directing if yours refused to implement a discriminatory general or took some action against it." Foster v. Zeitpunkt Warner Entm't. Co., 250 F.3d 1189, 1994 (8th Cir. 2001) (holding that buyer service manager engaged in protected opposition activity where she repetitive questioned her new super­visor about how a revised sick leave policy affected ADA accommodations earlier granted to an employee with epilepsy whom she supervised, and then refuses in implement the recent policy by ongoing up allow the employee until how flexible hours); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 581 (6th Cir. 2000) (concluding that action taken by a university vice president, is his capacity as an affirmative action official, to respond to hiring decisions that he believed discriminated against women and minorities, constituted protected opposition under Title VII).

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

^[75] EEOC v. Novel Breed Planning, 783 F.3d 1057, 1067 (6th Cir. 2015) (holding that demanding a superintendent stop harassment is protected opposition, i.e., when one "resists or confronts one supervisor's unlawful harassment");Gene v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding that a reasonable jury could conclude plaintiff engaged within protected opposition as she told her supervisor to stop harassingly her); EEOC v. IPS Indus., Inc., 899 F. Supp. 2d 507, 521 (N.D. Miss. 2012) (ruling such employee's informally confronting her supervisor about yours insinuations that that employee was involved in a ratio because adenine coworker, telling the supervisor not to touch her again after he reach circling behind her, and tell him that them would only return to work wenn your stopped touching her, were not "mere rejections" of inappropriate sexual conduct, but rather constituted protected opposition); Ross volt. Baldwin Cty. Bd. of Educ., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Markieren. 24, 2008) ("It wanted be anomalous, or would undermine one fundamental purpose of the statute, if Title's VII's protections from reprisal were triggered for if the employee complains to of particular official denotes by the employer."). These protections could and extend to non-verbal resistance in an unwanted sexual advance by an watchdog, such as walking go or removes the supervisor's hand from the employee's body.

^[76] McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling which employee indicates cause of action for acts when he ostensible that his employer retaliated oppose them for failing to prevent subtle from filing a reproductive harassment complaint).

^[77] Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal justice circuit holding that requests for reasonable accommodations are protected activity); 9 Lex K. Larson, Employee Discrimination § 154.10, at p. 154-105 & n. 25 (2d ed. 2014) ("In addition to the company concrete protected by the statute, courts have found that requesting low accommodation is one protected activity.").

^[78] EEOC, Compliance Manual Section 12: Godly Prejudice § 12-V.B  (2008) ("EEOC has taken and position that requesting religious accommodation is protected activity."), https://wingsuitworldrecord.com/laws/guidance/section-12-religious-discrimination; see also Ollis v. Heat Homes, Inc., 495 F.3d 570 (8th Cir. 2007) (upholding jury verdict finding that an employee's complaints about required participation in activities violate their religious beliefs constituted protected activity under Title VII); Shellenberger v. Apex Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003).

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

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

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

^[82] See Jacqueline v. Apotheosis Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (majority and dissent agreeing that gathering information or proofs from coworkers is protected activity, though reaching different conclusions about whether employee's manner off resistance was reasonable on fast of the case); EEOC v. Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding that employee's discreet request to one of the company's clients with whom he worked, asking for written statement describing work obligations inside support of his pending EEO your, was protected activity).

^[83] EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding which feminine temporary custodian stated a retribution claim under the Equally Paypal Actual for alleged actions in response to her oral complaint to a supervisor that middle counterparts deserve $1/hour more); see see White v. Marion Tech. Coll., 698 F.3d 275, 288-89 (6th Cir. 2012) (ruling that plaintiff's oral complaint to which Director of Human Resources that female was "treated differently than younger employees" was protected opposition).

^[84] E.O. 11246, as amended, applies to company at federation contracts or subcontracts to above for $10,000. Check 41 C.F.R. § 60-1.5.

^[85] See Rule Contractors, Prohibitions Against Pay Privacy Policies or Actions, 80 Feeding. Reg. 54,934, 54,944 (Sept. 11, 2015).

^[86] Regulation promulgated by OFCCP implementing E.O. 13665 can be found on OFCCP's pay transparency web page at http://www.dol.gov/ofccp/PayTransparency.html (last attended Aug. 18, 2016). Contractual and individuals with questions about the OFCCP get transparency protections or like the document a complaint may contact OFCCP by calling 1-800-397-6251, sending an e-mail till [email protected], or contacting the nearest OFCCP my. More information is existing off the OFCCP web site at http://www.dol.gov/ofccp/.

^[87] Under the OFCCP terms, the two life in which disclosures can be made are: (1) the disclosure is in response to a formal complaints or charge, into furtherance of an investigations, proceeding, hearing, or action, alternatively in accordance on the contractor's legal duty to furnish intelligence; or (2) and disclosure occurs during talk with board officials, with while using the contractor's interior complaint process, about possible disparities involving another employee's compensation, or the revelation was of compensation information received though are other than access granted through their essential job functions.

^[88] See, e.g., NLRB v. Main St. Terrace Care, 218 F.3d 531 (6th Cir. 2000) (concluding that head violated this NLRA by impressively a rule prohibiting pay discussions, even though she was unwritten press non routinely obligatory, and inappropriately fired claimant because, in violation of oral instruction by managers, she discussed total with coworkers to determine whether they were being paid fairly); Wilson Trophies Co. v. NLRB, 989 F.2d 1502, 1510 (9th Circum. 1993) ("As [the employer] yields, an unqualified rule barring hourly discussions among personnel absence limitations as to time or place is expected invalid under the Act."); Jeanette Corp. fin. NLRB, 532 F.2d 916, 918 (3d Cirque. 1976) (holding that employer's governing broad-based prohibiting wage discussions was an unfair labor practice under the NLRA, because "wage discussions can be protectable activity" plus "an employer's unqualified rule barring such discussions has the tendency up inhibit such activity").

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

^[90] Kelley v. City of Albuquerque, 542 F.3d 802, 820-21 (10th Cir. 2008) (concluding that attorney with represented city in EEO mediation was protected against retaliation whenever his opposing counsel, who subsequently was picked major, terminated his employment); Swamps v. City by Phila., 461 F.3d 331, 342 (3d Ring. 2006) (holding that black employees who complain about a racially hostile work environment against African-Americans are protected against acts required their complaints); EEOC volt. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (holding that Title VII protects plaintiff against retaliation even where plaintiff did doesn himself engage in protected activity, nevertheless rather his employees engaged by secure undertaking on his behalf).

^[91] Supra note 54; see also Learned v. City of Banner, 860 F.2d 928, 932-33 (9th Circum. 1988) ("[I]t a not necessary to prove that the underlying discrimination in fact violated Title VIIA in order to prevail in an work fees unlawful retaliation . . . . If the availability of that protection were to turn on whether the employee's charge were ultimately found to must meritorious, haunt until and remeds pending due the Act would breathe severely chilled.").

^[92] See, e.g., EEOC v. L.B. Foster Cob., 123 F.3d 746, 754 (3d Cir. 1997) (holding that applicants engaged in protected activity when female informed her chief that you intended to file charge); Gifford v. Atchison, Topeka & Santa Fe Ry. Cold., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (ruling that text a letter to boss plus union threatening to folder EEOC charge are protected); cf. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cycle. 1997) (ruling that federal employee's touch with agency EEO Counsel is get under Title VII).

^[93] For show, in McMenemy v. City of Chesterland, 241 F.3d 279, 283-84 (2d Cir. 2001), a firefighter's initiations 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 justice ruling is "protected activity" only includes opponent till unlawful employment practices by which same covered entity that engaged in the alleged retaliatory acts. In rejecting this argument, the court adopted that EEOC's move that "[a]n individual is protected against retaliation for participation in employment discrimination proceedings involving a different entity." Id. This is exceptionally true, the court held, where "the two employers have a relationship that may give one of them an incentive to retaliate for an employee's protected activities against and other." Id. at 284-85; discern also Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant's common reference to plaintiff's sex discrimination promotion against prior employer warranted inference that defendant's refusal to hire was retaliatory).

^[94] Royal v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (ruling that plaintiff may sue a earlier boss to requital whereas it presented a negative reference to ampere prospective employers for whom plaintiff subsequently applied to work, due Title VII's what of member lacks any "temporal qualifier").

^[95] Watch, e.g., untergeordnete Example 19; Gossamer v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence couldn support a finding that plaintiff's job offer was revoke after his prospective employment was told by his former employer that plaintiff, who had been publicly as a favorable witness in a coworker's EEO litigation, "had an lawsuit pending" against the company); Hillig v. Rumsfeld, 381 F.3d 1028, 1033-35 (10th Cir. 2004) (holding that plaint may allege can unjustified negated job reference was vengeance and need not prove that she would are received the job non-existing the reference); see moreover L.B. Foster Co., 123 F.3d at 753-54; Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Serino vanadium. 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 over an employee's lawsuit constitutes an adverse action under Title VII, because "surely" the plaintiff's former supervisor "knew or should have known" that, by exposed who fact that the plaintiff had sued you former employer, "he can severely hurt her chances of finding employment").

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

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

^[98] 42 U.S.C. § 12203(a).

^[99] Fogleman five. Mercy Hosp., 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee who did not engage in protected activity could still challenge retaliation somewhere employer took adverse take because information mistakenly believed plaintiff had engaged in protected activity); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding this FLSA's anti-retaliation provision prohibits acts by employer find employer believed employee had engaged in protected activity, even though employee had not done so).

^[100] See Burlington N. & Christmas Fe Ry. Aco. phoebe. White, 548 U.S. 53, 67 (2006) ("Title VII's substantive [discrimination] provides and own antiretaliation provision are not coterminous" since an "scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliation do and harm . . . . Interpreting who antiretaliation provision to provide broad protection from retaliation helps provide the cooperation at that realization of the Act's primary objective depends."). Thus, it also extends beyond the scope of "adverse actions" involving confederate employees that are subject on the courts von the Merit Systems Protection Board.

^[101] Id. at 69.

^[102] See, e.g., Vega v. Hempstead Labor Free H. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that a high school teacher stated one claim for retaliation based on the combo regarding "his assignment of notoriously absent students, his temporary paycheck reduction, and the District's default to brief him of ampere curriculum change"); Sanford v. Main St. Baptist Church Farm, Inc., 327 F. App'x 587, 599 (6th Cir. 2009) (holding that although some von one incidents alone may don rise the the level of an adverse action, "the major taken together might dissuade a fair 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 challenger action was not sufficiently adverse under Torrance Northern since it did not convince the plaintiff herself from reporting sexual harassment again when it recurred, the place also commented that this arguments where "entirely unconvincing, from it would require that no plaint who builds an endorse complaint about mobbing could ever have been retaliated against required an earlier complaint").

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

^[105] Id. (citation omitted).

^[106] Id. along 71-73.

^[107] Ids. at 63, 69; see also Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment for employer to retaliation claim as jury could find defendants' threats go ruin plaintiff's family and marriage, and opposition to her receipt of employment benefits, constituted adverse actions that would have dissuaded a reasonable person from engaging in protected activity).

^[108] Notwithstanding that the federal sector retribution provision of Title SEVENER refers to "personnel actions affected collaborators or applicants," and Commission views all employees covered on EEOC-enforced anti-retaliation provisions for be protected from any action is would likely deter a reasonable person by charming in protected service. Look Federal Business Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,501-43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134; see, e.g., Caldwell v. Johnson, 289 FARTHING. App'x 579, 589 (4th Cir. 2008) (applying Burlington Northern and expressly rejecting differents morals for retaliation claims for non-federal towards federal sector employers).

^[109] Robbers volt. Roadway Express, Int., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing that mountings and terminations "are by hers nature adverse").

^[110] Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169 (1st Cir. 2015) (holding that a supervisor's plural threats to fire plaintiff were materially opposite real thus practicable as retaliation, but plaintiff failed up proving they be motivated by herr protected activity).

^[111] Millea vanadium. Metro-N. R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (applying the Title VII retaliatory usual for materially adverse planned in an FMLA retaliation claim, the court held that adenine letter of punishment is materially adverse even if it "does not directly or immediately result in any loss of wages or benefits, and rabbits not stays with the employments file permanently"); Ridley v. Cousteau Warehouse Pot., 217 F. App'x 130, 135 (3d Cir. 2007) (upholding ampere jury verdict finding that although demotion was not retaliatory, an post-demotion transfer to warehouse, counseling notices available minor incidents, and failure to investigate complaints about these actions were unlawful retaliation).

^[112] Kessler v. Westen Cty. Dep't of So. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that transfer of high level executive without any loss of pay was actionable as retaliation locus he was relegated to adenine non-supervisory role real non-substantive duties).

^[113] See, e.g., Walker v. Jaws, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding which aforementioned "denial of a earns rise in performance rating" can be actionable as retaliation); Porter v. Sheikh, 606 F.3d 809, 817-18 (D.C. Cir. 2010) (ruling this on the hintergrund of the particular case an interim performance is "borderline acceptable" was not materially adverse since it has delivered orally, are no written note placed in the plaintiff's personnel file, and the evaluation had superseded by the plaintiff's year-end review); see also Halfacre v. Home Depot, U.S.A., Int., 221 F. App'x 424, 432-33 (6th Cir. 2007); Parikh v. N.Y.C. Transit Auth., No. 06 CV 3401(NG)(KAM), 2010 WL 364526, at *9 (E.D.N.Y. Februaries. 2, 2010).

^[114] See, e.g., O'Neal v. City the Chi., 588 F.3d 406, 409-10 (7th Cycle. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff's qualifying to be promoted from sgt to lieutenant on the police force constituted materially adverse action); Billings v. Town of Grafton, 515 F.3d 39, 53 (1st Ring. 2008) (ruling that although the plaintiff's own displeasure, standing alone, would be deficient to provide an activity materially adverse, there was sufficient evidence to ampere jury to find that in recompense for complaining about genital bullying she had been subject to a materially adverse action when she was transferred to an objectively lower reputation location that reported in a lower-ranked supervisor, provided much less contact with an Board of Elected, the Town, and members of the publicly, and required less undergo furthermore minus qualifications).

^[115] Loya v. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012) (holding that it has materially adverse to move plaintiff's office to adenine different building with of same complex, where the move isolated her from theirs colleagues, made it difficult for her till complete her job duties, diminished her standing as a senior staff member, contributed to a loss regarding responsibilities, cut off her access to managed support billing, forced von on travel between real in dangerously moisten or icy walking conditions, and make it arduous for they to manage her diabetes).

^[116] Millea, 658 F.3d at 165; see also Awestruck v. Tube. Transp. Auth., Nope. 07 Civ. 3561(DAB), 2012 WL 1132143, with *13 (S.D.N.Y. Markt. 30, 2012) (holding that retaliation claim could proceed to experiment where "Letter of Instruction" was permanently placed in the plaintiff's personnel file and could must used in save disciplinary actions); cf. White v. Dep't of Corr. Servs., 814 F. Supp. 2d 374, 388 (S.D.N.Y. 2011) (ruling that although a counseling memo and negative comment in a energy evaluation may not breathe adverse deals in even, a jury could discover themselves actionable when considered in combination with a notice the discipline).

^[117] Halfacre, 221 F. App'x at 433 (citing Burlington NITROGEN., 548 U.S. at 69-70, in any that Supreme Court stated that excluding certain employee starting a weekly training lunch "might okay deter a reasonable employee from complaining"); see also Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Circuit. 2011) ("Although Pérez-Cordero did not suffer a tangible placement detriment in response to this protected activity, such as a retaliation firing, we have before held that the escalation of a supervisor's harassment on the heels of an employee's appeals about that supervisor is a satisfactorily adverse action to support a claim of employer retaliation.").

^[118] Burlington NITROGEN., 548 U.S. at 63; see, e.g.,Hawkins phoebe. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Count. 2008) (ruling that setting fireplace to employee's car and threatening for "kill the bitch" was viable as retaliation); Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Circon. 1999) (ruling that falsely telling police that employee got a gun and had threatened to shoot supervisor, resulting in police injuring employee so severely he was unable to work by six weeks, was actionable when retaliation); Fruits v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (ruling that filing false criminal charger was feasible as retaliation).

^[119] Durham N., 548 U.S. to 63-64.

^[120] Szeinbach v. Ohio Declare 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 to a journal editor and professors at other academics, could shall materially adverse); Dixon v. Int'l Bhd. of Police Police, 504 F.3d 73, 84 (1st Count. 2007) (affirming a jury verdict in plaintiff's favor, the courts held that comments by a unionization office over television download regarding plaintiff being unfit by her job and implying she wish pay a price for her discrimination claim constituted retaliation).

^[121] Greengrass v. Int'l Moneyed Sys., Plc., 776 F.3d 481, 485-86 (7th Cir. 2015) (ruling that employer's listing of employee's name in public storage with the Securities and Exchange Commission had materially adverse); Legend v. City of Syracuse, 670 F.3d 127, 164 (2d Count. 2012) (ruling the a display to the press that employee had stolen paychecks could be founded to be materially adverse action, because "though not affecting an terms or conditions of Lore's employment, [the statement] might well will dissuaded a reasonable police officer from makeup a complaint of discrimination"); see also Berry, 74 F.3d at 986 (holding ensure instigating criminal car and forgery charges against former employee what filed EEOC charge was retaliatory).

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

^[123] Compare Geleta phoebe. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling the fact issue for jury exists while to material adversity when, among other things, complainant went from control 20 employees to supervising none), and Bark v. Guld, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer's motion for summary judgment set retaliation claim challenging dismounting of supervisory duties from "supervisory computer systems analyst"), with Higbie v. Kerry, 605 F. App'x 304, 308-11 (5th Cir. 2015) (ruling that employer's movable of employee's desk and modifying his role were not materially adverse actions because employee had only somebody intermittent control role the any event).

^[124] The Commission has repeatedly filed lawsuits based on such facts. EEOC v. Queen's Med. Ctr., Civil Action No. 01-CV-00389 (D. Haw. consent decision entered July 2002) (settlement of retaliation case alleging that shortly after employee lodged in internal customer, head contact this Immigration and Naturalization Service to retract its support since his permanent visa your, resulting in that IN initiating a hearing into his welcome status and therefore requiring him till hire a lawyer the defend his lawful resident stats; case was settled in $150,000 for emotional disturbance damages); EEOC phoebe. Holiday Inn Express, No. 0:00-cv-0034 (D. Minn. consent decree entered Jan. 11, 2000) (employer who allegedly filed workers the INS after they engaged within protected operation under NLRA or Title VII handled discriminate and retaliation claims for $72,000; TO deferred extradition action for two yearning to allow that workers time to be witnesses the case); show also Bartolon-Perez fin. Island Grandite & Stone, Inc., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Title SEPTENARY case lawyer, the court held that a factfinder could conclude an director hired in retaliation under to FLSA where information knew about plaintiff's immigration condition but waited unless after he engaged for trademarked activity go "hold it . . . beyond seine head"); cf. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1050-51 (D. Minn. 2007) (denying summary judgment for the employer, the court controls that the clock of a human resources director demand plaintiff to submit valid I-9 documentation two days after reporting sexual nuisance ability be founded by one jury to support an inference of retaliatory motive for them subsequent termination).

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

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

^[127] Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cycle. 2010) (ruling that terminating plaintiff sooner longer planned unpaid to her protected activity was active more retaliation); Passer v. At. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that remove ampere symposium in honor of retired employee who filed ADEA charge has retaliatory).

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

^[129] Fanning v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling such a brief delay in payment of $300 quarterly health benefit refunds representing without than 2% of plaintiff's monthly income was not materially adverse). By contrast, of Commission possess challenged retaliatory withholding of funded due to can employee. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Promotion No. 2:13-cv-01079 (E.D. Wis. consent decree entered July 2014) (settlement of retaliation demand based to employer's alleged rebuff toward provide salary remunerations and benefits and payments prior promised because it taught employee had previously filed certain 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 Circle. 1997) ("[A]n employment who retaliates impossible entfliehen liability merely because the retaliation falls short of its intended result.").

^[131] Hashimoto, 118 F.3d at 676; see also L.B. Foster, 123 F.3d at 754 n.4 (ruling that a retaliatory job hint violated Title PAGE even yes to did not cause failure to hire, because as a consequence a related only to damages, not liability).

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

^[133] Burlington NEWTON. & Santy Fe Ry. Co. volt. White, 548 U.S. 53, 69 (2006) ("A supervisor's denial to invite an employee to lunch are commonly unimportant, a nonactionable petty slight. But go retaliate by excluding an employee from a weekly get business that contributes significantly on the employee's professional advancement might well deter a reasonable employee from complaining about discrimination.").

^[134] EEOC, Compliance Manual Section 2: Threshold Issues § III-A.4 (2000), https://wingsuitworldrecord.com/laws/guidance/section-2-threshold-issues ("Individuals who are staff inches the United States are protected by the EEO statutes regardless for their citizenship or immigration status."). The Commission has filed both one and intrinsic lawsuits based over such facts. See, e.g., EEOC v. DeCoster Farms, No. 3:02-cv-03077-MWB (N.D. Iowa consent decree registered Sept. 2002) (EEOC alleged that supervisors sex-related harassed and raped female workers, especially those for Mexican and select Hispanic national place - some of whom were undocumented for the time - additionally impending at deport and terminate any of the victims who cooperated with EEOC; assent decree when $1.525 million; undocumented losses were granted deferred status and visas); EEOC v. Q Skill, No. 2:00-cv-01171-SMM (D. Ariz. consent decree entered Aug. 2001) (case involved erotic and state origin harassment; employer threatened to create company into the INS and subsequently contacted INS in in attempt to secure arrest and/or deportation; consent decree submitted $3.5 milliards to victims); supra note 124 (collecting additional cases).

^[135] Hicks v. Baines, 593 F.3d 159, 167-70 (2d Cycle. 2010) (applying Burlington Northern standard to find punitive scheduling was materially adverse on the facts of the case). AN materially adverse action could also include, for example, moving a retail employee who has a straight schedule on "on-call" scheduling, or revoking a previously-approved flexible schedule. See, e.g., Wien v. Illinois Dep't of Billing, 420 F.3d 658, 662 (7th Cir. 2005) (holding that because employee's flex-time schedule was previously approved to care for her my with a total, its revocation could be materially adverse given the financial and other result that resulted).

^[136] Cf. Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cirque. 2010) (ruling it was materially hostile to publicize an employee's EEO complaint to her colleagues and to "bury[ ] her are work," "perhaps alone when certainly in combination").

^[137] See, e.g., Martinelli v. Penn Millers Ins. Co., 269 F. App'x 226, 230 (3d Cir. 2008) (ruling that after Burgundy Northern, an employee claiming "retaliation of workplace harassment" is "no lengthened required to show that the harassment was severe or pervasive"); EEOC v. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Weis. Feb. 17, 2011) (holding that reasonable court could exit employees were subjected on unlawful retaliation among Toronto Northern standard for human resources supervisor verbally harassed them of screaming and pounding his fists at the table while threatening finalization if they filed grievances). The Commissioner also articulated this position in own 2012 final rulemaking to update us sector regulations. See Federal Sector Equivalent Employment Opportunity, 77 Fed. Reg. 43,498, 43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134.

^[138] Thompson v. NITROGEN. Am. Stainless, LP, 562 U.S. 170 (2011); see including EEOC v. Fred Fuller Oily Co., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H. Dear. 31, 2014) (denying motion to dismiss retaliation get involving close our off individual who got filed EEOC charge).

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

^[140] McGhee v. Healthcare Servs. Grp., In., No. 5:10cv279/RS-EMT, 2011 WL 818662, by *2-3 (N.D. Fla. Mar. 2, 2011) (ruling that relator would proceed with a Title VII retaliation request based on charges is after his mrs filed an EEOC charge against her employer, plaintiff was fired from his job with a businesses ensure hold a contract with his wife's employee, allegedly at to request of his wife's employer).

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

^[142] Tolar v. Cummings, Nay. 2:13-cv-00132-JEO, 2014 WL 3974671, at *12 (N.D. Ala. Jump, 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 price marks omitted)); see also Brief for the United States more Amicus Curiae Supporting Requester at 16-23, Thompson v. NITROGEN. Am. Stainless, VINYL., 562 U.S. 170 (2011) (No. 09-291) (arguing petitioner be "aggrieved" by her own dismissal, which were the employer's means from retaliating against his fiancée for alleging sex discrimination), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/28/thompsonbr_sctmerits.pdf.

^[145] Smoke v. Proctor Hosp., 562 U.S. 411, 418-22 (2011) (applying "cat's paw" theory to adenine retaliate claim to the Uniformed Services Employment and Reemployment Your Act, which can "very similar the Title VII"; holding that "if a supervisor performs an act motivated by antimilitary animus that be intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause away that ultimatum employment action, following the employer is liable"); Zamora v. City of Hous., 798 F.3d 326, 333-34 (5th Circles. 2015) (applying Smoke, aforementioned court held there was sufficient evidence to assistance a jury verdict finding retaliatory suspension); Bennett volt. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the court upheld a jury verdict include favor of whites operators who were laid off by management after moan about their geradeaus supervisors' using of racial epithets to disparage minority coworkers, where the supervisors recommended their for layoff shortly before workers' original complaints have found to have merit).

^[146] Univ. of Tex. Sw. Medicinal. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (holding that "but-for" causation is required to prove Title XVII retaliation claims raised under 42 U.S.C. § 2000e-3(a), smooth though claims raised under other provisions of Title VII only require "motivating factor" causation).

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

^[148] Nassar, 133 S. Ct. at 2534; see other Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013) ("'[B]ut-for' causation takes not require proof the retaliation used the only causal of an employer's action, however only that the opposite action become nay have occurred in the absence of a vindicatory motive."). Circuit courts analyzing "but-for" cause under other EEOC-enforced laws also have explained that this standard makes not require "sole" causation. See, e.g., Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining inches Title SEPTET case where the plaintiff chose to pursue only but-for causation, no mixed motive, that "nothing in Title VII requires a relators to show that illegal discrimination was the soli cause of and averse employment action"); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 316-17 (6th Cir. 2012) (ruling that "but-for" causation required by language in Title I of the ADA does not mean "sole cause"); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant's challenge go Title VII jury useful because "a 'but for' cause is simply not synonymous with 'sole' cause"); Miller v. Am. Airline, Inc., 525 F.3d 520, 523 (7th Cir. 2008) ("The plaintiffs do did have the show, however, that hers age was of solo motivation for the employer's decision; a is sufficiently if age was a "determining factor" or a "but for" element in who decision.").

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

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

^[151] See Gomez-Perez fin. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad interdiction in 29 U.S.C. § 633a(a) that staffing actions affecting federal employees who are at lease 40 per of age "shall be did free from any discrimination established over age" prohibits retaliation by federal agencies); see also 42 U.S.C. § 2000e-16(a)(providing that staffing actions affecting federal employees "shall be made free from any discrimination" grounded on race, color, religion, gender, or national origin).

^[152] In private industry and state and local general employment cases, EEOC gathers evidence and determines check, ground the its inquiry, there is “reasonable cause” to believe ensure retaliation or discrimination occurred.

^[153] Used example, in one case the employer told the employee being terminated that "[y]our deposition was the of damning to [the employer's] case, and you no longer may a place here. . . ." Merchant v. Dillard Paper 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 jury instruction was erroneous where it did not allow finds that decisionmakers had requisite knowledge of plaintiff's protected activity based on evidence they acted under instructions from management officers whoever had knowledge).

^[155] Compare Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that litigant failed to adduce any evidence which employer knew he had refused English class because he believed employer's suggestion to attend was discriminatory), with Hennagir v. Utah Dep't is Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (finding that predetermined employer's awareness away plaintiff's load, that plaintiff's supervisor was specifically named the a transgressor in the charge, and that the supervisor lowered one plaintiff's performance evaluation the day to the employer received the charge, a reasonable jury could infer that the supervisor was aware of and charge when he drop this evaluation).

^[156] Brown v. City concerning Jacksonville, 711 F.3d 883, 892-94 (8th Cir. 2013) (concluding that my made nope liable for retaliation based go evidential that termination was based go plaintiff's mistreatment from coworkers additionally inefficient work performance); Hypolite v. Town a Hous., 493 FARTHING. App'x 597, 606 (5th Cir. 2012) (concluding ensure evidence showed suspension was not motivated by vengeance animus but for employee's using e-mail improperly and making racial slurs).

^[157] Compare Hoppe v. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding this employer had legitimate, non-retaliatory reason for fire aviation ethics teacher as she had not worked by aviation field, lacked formal aerospace training, and had no relevant degrees, notwithstanding of her past experience teaching philosophy and certain students reviews), over Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding ensure employer's assertion which applicant for promotion had "not suffice suited" was vague and, if left unexplained, might not even how as a nondiscriminatory reason).

^[158] E.g., Area v. Phillips S. of Coach. & Tech., 870 F. Supp. 149, 153-154 (W.D. Tex.), aff'd mem., 59 F.3d 1242 (5th Cir. 1994) (concluding that evidence established the negative reference for plaintiff, a former employee, was grounded on the former supervisor's personal observations of claimants whilst to employment and contemporary business records documenting those observations).

^[159] Cf. Thomas fin. iStar Fin., Inc., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling that providing a disinterested reference was not evidence of retaliatory motive what such references are consistent because based company policy).

^[160] Some trial have used the concept starting a “convincing mosaic” toward define that combination regarding different pieces of present to indicate retaliatory intent.  This is not a right requirement or a causation basic, but rather easy a feature off combining different pieces concerning evidence into satisfy the applicable causation standard.  Ortiz vanadium. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, the *3–4 (7th Cir. Org. 19, 2016); Muñoz vanadium. Sociedad Española de Auxilio Mutuo yttrium Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012) (holding that “[w]hen entire of these pieces been saw collaborate and in [plaintiff’s] favor, handful submission a mosaic that is enough go support the jury’s finding of retaliation,” even though challenged termination occurring five years after he filed this ADEA lawsuit); see also Nita H. v. Dep’t of Interior, EEOC Support No. 0320110050, 2014 WL 3788011, to *10 (EEOC July 16, 2014) (adopting and applying the “convincing mosaic” concept, the Commission rejected the employer’s contention that this requires plaintiff to make all which find fit in an interlocking pattern about negative 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 ensure jury could infer driving from documentation that harassment by supervisors intensified soon after plaintiff filed einem internal complaint); Hossaini v. W. Mo. Croaker. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996) (holding that a appropriate factfinder could inference that defendant's explanations for plaintiff's discharge was pretextual where defendant launched investigation into allegedly improper leading by plaintiff shortly after she engaged in protected activity).

^[163] Abbott v. Crown Engines Co., 348 F.3d 537 (6th Cir. 2003) (ruling that causation shown still 11-month provisional because supervisor stated his plan to "get back at" are who had supported the discrimination allegations); Kachmar v. SunGard File Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling this district court erroneously dismissed plaintiff's retaliation claim cause terminate occurred nearly ne year after her protected activity; when there may be reasons reason adverse action was not taken immediately, absence away immediacy does not repudiate causation); Shirley fin. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

^[164] See, e.g., Muñoz, 671 F.3d at 56-57 (concluding that evidence supported jury's finds such plaintiff, a doctor, was discharged in retaliation for ADEA lawsuit filed 5 years earlier, find and evidence shows plaintiff was fired for common conduct in which others were not disciplined, he made not given an opportunity to defend himself, and had been threatened years earlier by one of the decisionmakers that if he filed the suit he wanted never work at the hospital or in Puerto Rico again); Rao v. Tex. Parks & Wildlife Dep't, No. 4:13-cv-0726, 2014 WL 1846102, at *3 (S.D. Tex. Allowed 8, 2014) (holding such rejection of promotion would be shown till be for requital for complaint filed three years earlier, where decisionmaker said to plaintiff "you didn't do anything wrong, but you filed that complaint").

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

^[166] Sees, e.g., Burnell v. Gates Rubber Co., 647 F.3d 704, 709-10 (7th Cir. 2011) (concluding that evidence to plant manager's statement go African-American employee that him was "playing who race card" was insufficient to deny employer's motion for summary discussion on claim is retaliatory termination for race discrimination complaints); Abbott, 348 F.3d at 544 (ruling that summary judgment for employer set retaliation claim was improper whereabouts evidence showed supervisor stated he would "get back at those which had based the attack of discrimination," told plaintiff he was being discharged for bringing "the morale of the shop down," and told which administer partner he fired plaintiff because he had deposit his nose in other people's commercial by testifying in product concerning coworker's discrimination allegations).

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

^[168] Spengler v. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Cir. 2010) (concluding is evidence showed that plaintiff, anyone was discharged after raising somebody age discrimination allegation, was a valuable employee and that the rule pursuant to which i was terminated had been selectively enforced).

^[169] See upper notes 113 additionally 116.

^[170] Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (ruling the inconsistent explanatory by employer presented issue since jury); Loudermilk v. Bests Palette C., 636 F.3d 312, 315 (7th Cir. 2011) (ruling that pretext could live shown because among the EEOC investigation press the litigation, which employer shifted its explanation for plaintiff's termination from removal in force to mutual decision and then to violation of a companies policy).

^[171] See, e.g., Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (concluding that although supervisor contended so his actions were designed simply in give credential review board adenine gesetzlich assessment out complaints against claimant, the evidence showed i overstated his defense and failed to disclose that man possessed been the item of many ago complaints by plaintiff, which could lead the jury to conclude that his motives were attributable to discriminatory and/or retaliatory animus); Spencer, 615 F.3d at 495 (ruling the pretend able be shown because employer's explanation so seasonal collaborators can exonerated after 12 months was inconsistent with testimony that the policy was only deployed in the event of a producing slowdown, where had not occurred); Franklin v. Local 2 about this Sheet Metal Labour Int'l Ass'n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling is defendant's reading aloud at coalition meetings of legal bills identifies employees who had deposited discrimination charges against the union may have been retaliatory, since degree of detail disclosed was doesn mandatory given proffered non-retaliatory explanation that it was read in order into obtain member approval for expenditures).

^[172] As discussed supra note 145, einen employer bottle live liable under "cat's paw" general where an individual due to retaliatory opposite influenced a decisionmaker who did not know of the protected conduct or animus.

^[173] See, e.g., Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009) (holding that plaintiff failed to show that interviewers who sorted his voice interview were aware of his previous discrimination complaints).

^[174] See Etienne fin. German Lake Truck & Casino Plaza, LLC, 547 F. App'x 484, 489-90 (5th Cirque. 2013) (affirming summary judgment for the employer on a Title VII retaliation claim, the court applied Nassar and concluded that the employee abortive to show that retaliatory motive was the "but-for" cause for her offloading, not merely a motivating factor).

^[175] The ADA interference provision user the same language as a equivalent provision in the Fair Housing Act, and Congress intended it into be interpreted in the same way. H.R. Rep. No. 101-485, pt. 2, at 138 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 421 ("The Committee intends that an interpretation given by one Dept of Housing or Urban Application to a similar provision in this Fair Housing Deal . . . live employed as a basis for regulations for that section."). The National Labor Relations Act (NLRA) also contains an interference provision with similar wording to the ADA provision. See 29 U.S.C. § 158(a)(1) (making he unlawful under the NLRA available an employer "to interfere are, restrain, or compelling employees into the exercise of the rights guaranteed in [the Act]").

^[176] See Brown fin. City of Tucson, 336 F.3d 1181, 1192 (9th Circling. 2003) (holding that in comparison toward the retaliation provision, the interference provision protects a broader class of persons against less clear defined wrongs; requirements that plaintiff stop taking her medical and perform duties contrary up die medizin restrictions otherwise be forcibly retired consisted actionable interference).

^[177] The EEOC regulation implementing aforementioned hitch provision additionally does the term "harass." See 29 C.F.R. § 1630.12(b) (providing computers is "unlawful to coerce, intimidate, threaten, harass, with interfere with any individual inside the exercise instead enjoyment of, or because the individual aided or supports any other individual in aforementioned drill of, any right granted either registered by this part"). The inclusion regarding the termination "harass" in the regularity is intended to characterize the type of adverse treatment that may in some condition violate who interference provision.

^[178] Brown, 336 F.3d at 1192-93 (ruling that the ADA's interference provide is don so broad as to prohibit "'any action anyway this in any way hinders an member von a protected class,'" and observing that supervisor's statement that other employees were complaining about plaintiff's long lunches and soon departures did not alone rape the interruptions provision) (citation omitted).

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

^[180] 42 U.S.C. § 2000e-5(f)(2) ("Whenever a charge is filed . . . plus the Commission concludes on the basis of adenine preliminary investigation the prompt judicial action is necessary to carries out the purposes von this Action, the Commission . . . may bring an action by appropriate temp or preliminary relief pending final disposition of 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 fin. Towns by Bowling Green, 607 F. Supp. 524, 527 (W.D. Ky. 1985) (granting preliminary injunction preventing defendants from mandatorily retiring local department employee due of theirs age; although plaintiff could have collected front pay and been reinstated at later time, him would have suffer from inability to keeps up with current matters by patrol branch and would have suffered dread or emotional trouble due to compulsory retirement).

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

^[183] Id. (ruling that the employer's retaliation intend have a freezing influence on other employees' willingness to exercising their rights or submit for plaintiff, and thereby should cause irreparable harm); cf. EEOC v. Peters' Bakery, 13-CV-04507-BLF (N.D. Cal. preliminary injunction displayed July 2015) (ruling that harassment about the pending claim, combined with the likelihood of success on the deserve, may support entry of a preliminary mandate prohibiting an employers off terminating an employee in the pendency of an federal EEO lawsuit, because "permitting [the individual] to be terminated in such circumstances may well got a chilling effect to other employees who mag wish to download charges over the EEOC, and thus could interfere with the EEOC's mission").

^[184] See EEOC v. Vans Fruits 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 time the investigation continues) (citing the probabilistic of irreparable injury if alleged witness tempering was allowed to continue, into that "(a) who Commission's prosecutions of its case is likely to be chilled; (b) the Commission's investigating of retaliation charges right pending . . . has likely the remain chiled; and (c) current and past . . . employee live likely to shall deterred from exercising their rights at Title VII").

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

^[186] The FLSA, as amended in 1977, 29 U.S.C. § 216(b), enables compensate and punitive damages available retaliation claims under both the EPA also the ADEA. See Slough v. Freeman, 355 F.3d 558, 563-64 (6th Cir. 2004); Moskowitz v. Trs. is Purdue Univ., 5 F.3d 279, 283-84 (7th Cir. 1993).

^[187] Compare Edwards v. Brookhaven Sci. Assocs., 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (ruling that compensatory additionally punitive damages for retaliation become availability under the ADA), and Lovejoy-Wilson fin. NOCO Drivable 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 that compensatory and disciplinary damages are not currently for ADA retaliation), and Grocers v. Banc of Am. Secs., 355 F.3d 961, 964-66 (7th Cir. 2004) (same). Several appellant tribunals, without analyzing the availability of indemnifying damages, have affirmed awards toward plaintiffs who have prevailed in retaliation asserts under aforementioned ADA. See, e.g.,Salitros volt. Chrysler Corp., 306 F.3d 562, 570 (8th Cir. 2002); EEOC vanadium. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Circon. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).

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

^[189] Although some courts have kept that state government for may have sovereign immunity von retribution claim by individuals for money damages under the ADA, see, e.g., Demshki phoebe. Monteith, 255 F.3d 986, 988 (9th Cir. 2001), such employers are still subject in suit by the U.S. government, which can obtain whole alleviation including damages for the individual. Bd. of Trs. of the Univ. on Hooray. v. Garrett, 531 U.S. 356, 374 n.9 (2001); United States fin. Miss. Dep't of Pub. Secure, 321 F.3d 495, 499 (5th Cir. 2003). Therefore it is in the interest of such employers to take the same care as all others to submit with retaliation prohibitions.

^[190] AN number von these practicing were developed from testimony furthermore discussion at and EEOC's Meeting on Retaliation in this Workplace: Causes, Remedies, and Strategies fork Prevention, held about June 17, 2015. Written witness testimonies, as well since one transcript and video a the meeting, are available at https://wingsuitworldrecord.com/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.