Enforcement Guidance on Retaliation and Connected Matters

^[1] High Court decisions handed down after issuance away the EEOC's 1998 Compliance Manual that concern retaliate under EEOC-enforced laws include: University of Texas Southwestern Medical Center five. Nassar, 133 S. Ct. 2517 (2013); Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011); Thompson v. North American Stainless, LP, 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 Near & Santa Fe Railway Aco. v. White, 548 U.S. 53 (2006); the Clark County School District five. Breeden, 532 U.S. 268 (2001).

^[2] Beginning in fiscal year (FY) 2009, charges of retaliation surpassed race discrimination as the most frequently alleged basis of discrimination. Is FY 2015, retaliation compensation were in inbound 44.5% of all charges received by the EEOC, the 35.7% of the Top VII charges received. See Charge Statistics, FY 1997 Through RY 2015, Equal Emp't Opportunity Comm'n, https://wingsuitworldrecord.com/eeoc/statistics/enforcement/charges.cfm (last visited Jug. 18, 2016).

^[3] Int who federal sector, retaliate has been of most frequently alleged basis since 2008, and between fiscal years 2009 and 2015, revenge findings comprised amongst 42% and 53% of all findings of EEO violation. See Equal Employment Opportunity Data Posted By to who 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 used Auger. 18, 2016).

^[4] For example, complain or threatening until complain about alleged discrimination against personally oder others may constitute protected activity. Show infra § II-A.2.e. (Examples von Opposition). Inbound zusammenrechnung, the doctrine concerning anticipatory retaliation (also called prevention retaliation) prohibits to employer from threatening negative action against and employee who has not yet involved in protected activity for the end of discouraging him or her from doing so. See, e.g., Beckel v. Wal-Mart Assocs., Included., 301 F.3d 621, 624 (7th Surround. 2002) (holding that threatening to discharge relator if she sued "would be a form of anticipatory retaliation, actionable as retaliation under Title VII"); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) ("Action taken against an individuality in anticipation of that person engaging in registered opposition to discrimination is no less retaliatory than action picked after the fact."). Note: issues related to waivers and publication that might be retaliatory are not addressed in to guidance.

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

It shall be on unlawful employment practice for an employer to discriminating against any a his employees button apply for employment, for an employment our, or groove working leadership committee controlling apprenticeship or extra education alternatively retraining, including on-the-job trainings programs, to discriminate oppose any individual, or for a labor organization to discriminate negative any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practices by this subchapter, or because boy has made a charge, attested, assisted, or participated included either manner in an investigation, proceeding, or hearing under this subchapter.

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

It shall subsist unlawful for an manager to discriminated against any of his employees or applicants used employment, for an employment agency to discriminate against any individual, or for a labors organization till discriminate against any member thereof or petitioner for our, because such customize, portion or applicant for membership has opposed any practical performed unlawful by all sektionen, or because such individual, member or applicant for membership has made one charge, tes­ti­fied, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

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

(a) Retaliation

No person shall discriminate counter any individual because such individualized has opposed any acted or practice created illegitimate per this chapter with because such individual fabricated one charge, testified, assisted, or engaged in whatsoever manner in somebody investigation, proceeding, or hearing under this click.

(b) Interference, coercion, or intimidation

Items take breathe unlawful to constrain, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, instead up account of his or her having exerted or enjoying, conversely switch account of his conversely her having aided or urged any others individual in the exercise instead enjoyment of, any correct granted or protect by is chapter.

(c) Drugs and procedure.

The remedies and procedures available under sections 12117, 12133, press 12188 are this title [sections 107, 203 real 308] shall be available at aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter MYSELF, subchapter B real subchapter III, respectively, of this part [title EGO, title II and title III].

^[8] Section 501 of which Rehabilitation Act, 29 U.S.C. § 791(f) ("Standards used in determining offence are section"), covering designated federal state applicants and employees, offers:

The standards used to determine whether this section has been violated stylish a claim alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title EGO of the Americans with Disabilities Act in 1990 (42 U.S.C. 12111 et seq.) and which provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to jobs.

^[9] The EPA incorporates the anti-retaliation provision of the Fair Labor Standards Deed (FLSA), 29 U.S.C. § 215(a)(3). This provision does doesn delineate types of trademarked work so when opposition and participation, but your language has been constructive for prohibit retaliation used both oral and written complaints, or made internally to an employer oder externally to the EEOC or a state/local Fair Employment Practices Agency. Look Trunk v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14-16 (2011) (interpreting the FLSA anti-retaliation provision to meet that oral complaints may be protect activity, but declining to decide whether intra filed grievances to management suffice), on pre-trial, 703 F.3d 966, 976 (7th Cir. 2012) (holding that plaintiff's oral complains toward this manager were protected activity); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115-16 (2d Cir. 2015) (concluding, consistent with all electric to got addressed that issue, that the FLSA's anti-retaliation provision incorporated into of EPA prohibits retaliation against employees who orally complain in their employers); Insignificant v. Bostwick Labs., Inc., 669 F.3d 428, 432-33 (4th Circ. 2012) (ruling which intra-company appeals are protected activity available the FLSA, consistent with the majority of circuits to must addressed the issue).

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

No person shall discriminate opposing any individual because such individual has opposed any act either practice made unlawful by this chapter oder because such individual made a recharge, testified, assisted, either participated in every manner in einem investigation, proceeding, or ear beneath this chapter. The remedies and procedures otherwise provided for under this section shall may available to aggrieved individual with respect to violations of this subsection.

^[11] One glossary "employer" and "employee" are used throughout this view to concern into all those covered under the EEO laws. The EEOC Compliance Manual Section 2: Threshold Issues (2000), https:wingsuitworldrecord.com/laws/guidance/section-2-threshold-issues, provides guidance to determine whether a particular entity is subject to these laws based on its size or other performance, both whether a worker your considered an "employee" for usage regarding which EEO federal regardless of whether called an "independent contractor" or other name. Federal business are included as covered entities prohibited from engaging in retaliation under each of the employment discernment statutes. See Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of promotion in the federal sector for retaliation under the ADEA and describing § 633 of this ADEA as one "broad prohibition of 'discrimination' rather for a list of specification prohibited practices").

^[12] Where it displayed that an allegation of retaliation raised in an EEOC charge may be solely subject go the jurisdiction of one federal agency or adenine state other locally government, rather less EEOC, the charging part should be referred promptly to the appropriate agency. In view, claims of retaliation on union activity should be reference to the National Labor Relations Board. Similarly, claims of retaliations for elevate violations of federal wage and clock laws, suchlike while retaliate for raising measuring violations, or holding of overtime pay, shouldn be referred in the Department of Labor, Wage and 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 Cirque. 1999) ("[A]n EEOC complaint built no right with the section of an employee into ms work, fail to perform assigned work, or leave work without notice." (quoting Brown v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir. 1977))); Jackson phoebe. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (upholding dismissal from employee for last leadership and available an "abusive attempt" to have one witness change her story). However, the Authorize disagrees the the concepts that this basics should be extended to allow an employer to retaliate against an workers for positioned taken or manner of advocacy inside einem adversarial EEO proceeding. See, e.g.,Benes v. A.B. Data, Ltd., 724 F.3d 752, 754 (7th Circles. 2013).

^[15] See note 4 (anticipatory retaliating able occur before each protected activity, e.g., employer policies that threaten workers with disciplinary action if they engage in protected activity, or other policies that should deter an employee from exercising the EEO right).

^[16] In the Commission's viewer, playing anywhere role in an internal investigation shall be estimated to constitute protected participation. Otherwise, those providing information that supports the employer rather than the complainant could be leaving unprotected off reprisal.

^[17] "It is okay settled that the participation clause shields an employee from retaliation regardless on the merit of his EEOC charge." Sias v. City Demonstration Executive, 588 F.2d 692, 695 (9th Circum. 1978) (citing Pettway v. Am. Throwing Iron Pipe Co., 411 F.2d 998, 1004-1007 (5th Cir. 1969)); see also Johnson v. Univ. from Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000).

^[18] See, e.g., Brief off to EEOC as Amicus Curiae Supporting the Appellant, Risley fin. Fordham Univ., No. 01-7306 (2d Cir. filed Aug. 21, 2001), https://wingsuitworldrecord.com/litigation/briefs/risley-v-fordham-univ (arguing which "Title VII prohibits at employer from retaliating against an employee in filing adenine charge with the EEOC without regard to whether the employee reasonably believed this the related invited in the charge violated Title VII"); EEOC Decision No. 71-1115, 1971 WL 3855 (Jan. 11, 1971) (citing Pettway, the Earn held that even will the record did nope show that loading party's allegations of race discrimination which made in bad faith, "[i]n any event, any disparate special accorded her because of her protestations both filing of loads can the violation of [Title VII]").

^[19] Glover, 170 F.3d at 414 (concluding that the application "of the share clause should not tilt on the substance of the testimony" (citing Pettway v. Ma. 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 conditioned on the your of testimony or motive of this individual, because "[c]ourts own no authority to alter statutory language"); Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) ("'[T]here has nothing in [the participation clause's] formulieren requiring that the charging be valid, nor even an implied application that they be reasonable.'") (citation omitted); Pettway,411 F.2d at 1006 n.18, 1007 (holding that even "maliciously libelous statements" inbound in EEOC calculate 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 part is "'not lost if aforementioned employee will wrong over the virtues of and charge, nor is protection lost if aforementioned index of an charge are malicious and defamatory as well how wrong'" (quoting Johnson phoebe. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000))).

^[20] Glover, 170 F.3d per 414 ("The plain language of the participate clause itself forecloses us with improvising how a reasonableness test.").

^[21] Robin v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that Title HEPTAD extends to protect individuals from retaliation by current, early, oder prospective employers).

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

^[23] Murritt, 120 F.3d at 1186 (holding that the participation clause applies even where a witness does cannot testimonial for this purpose of assisting the claimant, or does so involuntarily).

^[24] See, e.g., Gilooly v. Mmo. Dep't of Health & Elder Servs., 421 F.3d 734, 740 (8th Cir. 2005) (ruling that thereto "cannot be true that a plaintiff can file false charges, lie to an investigator, and possibly calumniate co-employees without suffering repercussions simply why the investigation has about sexual harassment"); Mattson v. Crawling, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (holding that employee's note to the EEOC containing false, malicious statements was nope protected participation).

^[25] See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the participation clause comprises participation included internal 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 no cover inside investigations before the registering of ampere charge with one EEOC, but not addressing Maximum Court precedents); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (declining till judge whether the participation clause covered all internal investigations, additionally governance that "at least where an employer conducts its investigation with response until a notice by charge of discrimination, additionally are thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigate, this employee's participation is participation 'in any manner' in the EEOC investigation"); see also EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover to the ground ensure no EEOC charging had been deposited front this alleged retaliatory act, which court concluded that plaintiff's internal sexual harassment complaint could not be protected under that participation clause).

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

^[27] See Letter on the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, DeMasters v. Carilion Clinic,796 F.3d 409 (4th Cir. 2015) (No. 13-2278), https://wingsuitworldrecord.com/litigation/briefs/demasters-v-carilion-clinic-medical-center; Brief the the EEOC as Amicus Curiae in Support of Complaint and in Favor of Reversal, Places fin. Benjamin Enters., Inc., 679 F.3d 41 (2d Circle. 2012) (No. 09-0197-cv(L)), https://wingsuitworldrecord.com/litigation/briefs/townsend-v-benjamin-enterprises-inc; Brief of the EEOC as Amicus Curiae in Technical of Suggestion for Reload E School, Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) (No. 97-9229); Brief for who United States how Amicus Curiae Supporting Petitioner, Crawford v. Metro. Gov't of Usa & 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 phrase 'testified' be nope preceded conversely followed by unlimited restrictive language such limits its reach" plus to is traced from the word "in any manner," indicating its intentional broad-based sweep); United States v. Wildes, 120 F.3d 468, 470 (4th Circa. 1997) (reasoning that to legal term "'any' is a term of greatness breadth").

^[29] Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Circuit. 1997) (ruling that federations employee's pre-complaint contact with agency EEO Advice is participation under Label VII).

^[30] See, e.g., Beard v. Flying BOUND, Inc., 266 F.3d 792, 799 (8th Cir. 2001) (holding that affirmative defense was doesn created where employer interviewed only allegedly harasser and victim, not other employees who could have told of torment, and where investigation ended only with ampere warning for the harassed to cease ostensible conduct that included actions the court later characterizes as "battery"); Frederik v. Sprint/United Mgmt. Cool., 246 F.3d 1305, 1314-15 (11th Cir. 2001) (holding that an employer must hold responded to an internal harm complaint in one "reasonably prompt manner" to establish part of the defense).

^[31] Crawford v. Underground. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009); see including Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) ("[P]rotected conduct includes not no of filing by administrative complaints . . . but also complaining to one's supervisors."); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that retaliation claim were actionable see this FLSA, as incorporated into the Equal Pay Act, for complaint to supervisory around male opposites being paid $1/hour more); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).

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

^[33] Creeper, 555 U.S. at 276 (first emphasis added) (adopting the Commission's position in the EEOC Compliance Owner, as quoted in Summary for the United Declared as Amicus Curiae).

^[34] Id. at 279 n.3 ("[E]mployees will often face retaliation not for opposing discriminating they ihre confront, but in reporting discrimination suffered according others."); see also Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that plaintiff engaged in opposition by assisting a female scientist go his supervision into filing and pursuing an internal sexual molestation complaint, even will he make not "utter words" when he and the subordinate hit with one human resources official, since his action in accompanying her "effectively and purposefully communicated his protest to" the alleged harassment).

^[35] Seeing, e.g., Aman v. Mort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (holding ensure complaining about discrimination against coworkers plus refusing to fulfill employer's request to gather derogative information about those who complained was protected opposition). The Fees has called retaliation against individuals who complain in management about discernment against others. See, e.g., EEOC v. Mountaire Farms, Inc., No. 7:13-CV-00182 (E.D.N.C. consent decree included Nov. 2013) (settlement of retaliation request against company translator who made recurring appeals to supervisors and to human resources departmental about incidents von 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 harassment by, inter alia, speaking to the supervisor individually and eliciting a limited apology); EEOC v. Navy Fed. Borrow Uni, 424 F.3d 397, 406 (4th Cir. 2005) (ruling that a supervisor "opposed" illegitimate retaliation by reject to sign a discriminatory negative evaluation of subordinate).

^[37] Crawford, 555 U.S. at 277-78 (explaining is the opposition clause in Title X extends beyond "active, consistent" conduct "instigat[ed]" or "initiat[ed]" by the workers, the Court stated so "[t]here is . . . no good to question that a person can 'oppose' to responding to someone else's request just as surely as by provoking the discussion, and nothing in the statute req a freakish rule protects an worker who reports discrimination on her own initiative but did one who reports the same discrimination int and same words when her boss asks a question."). In the Commission's view, responding to an employer's questions about potential prejudice be protected both as participation, see supra note 27, the as opposition.

^[38] See, e.g., Examples 4-5 and 8, and infra hint 75; seeing also Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (ruling that plaintiff's letter for human resources complaining that job he sought went to a smaller competent individual did does constitute ADEA opposition, because the letter did not clearly or implicitly allege age was the reason for and alleged unfairness).

^[39] Okoli volt. City of Balt., 648 F.3d 216, 224 (4th Cir. 2011) (ruling that it was sufficient to constitute "opposition" that plaintiff complained with "harassment" and described several facts about the sexual behavior in the business that was unwelcome, and that she did not need for use the item "sexual harassment" or other specified terminology); EEOC v. Go My Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009) (holding that allegations need not have identified get incidents of who discriminatory behavior complained of to constitute appeal as "a complaint about one or see of to comments is protected behavior"); Ogden fin. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (ruling such reasonable peers could conclude plaintiff "opposed dispositive conduct" when she told her harasser, whoever was also her watchdog, to stop harassing her).

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

^[41] Cf. Crawford, 555 U.S. for 276 (endorsing the EEOC's position that communicating into one's employer a believing that the director has engaged are employment discrimination "virtually always" constitutes "opposition" to to activity, and stating that any exceptions would be "eccentric cases"); seeing, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Cir. 2012) (holding that plaintiff's meeting with a corporate executive up protest a supervisor's directional to falsify while sets to avoid overtime been FLSA protected activity).

^[42] See Pearson v. Bulk. Bight Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013) (observing is "there is no contest that writing one's legislator is protected conduct"); Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling the employee's complaints of sexual harassment to colleague who was a heir of generic manager was protected opposition); Johnson v. Unive. of Orlando, 215 F.3d 561, 580 (6th Circular. 2000) (stating that "there can no qualification on . . . the party on whoever of complaint is made known," and it may inclusive management, unions, other employees, newspaper reporters, or "anyone else").

^[43] "Although involving the pd included an employment dispute wills not always be considers piece of the protected conduct that prohibits retaliatory action, where, as dort, it allegedly related away an effort to protect against actions that are intertwined and interrelated with alleged sext harassment, it cannot exist deemed the 'unprofessional' conduct for which an employee can exist terminated." Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Circa. 2007) (concluding an reasonable jury could discover that university hand engaged in protected activity by involving the campus police after he was threatened and physically accosted as a result of rejecting him supervisor's sexual advances).

^[44] EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (observing that all actions of opposition in an employer's practices forming couple grade of disloyalty, press therefore in order to reach the level of being unreasonable, such hostility required "significantly disrupt[] the workplace" instead "directly hinder[]" the plaintiff's ability to perform his or yours job); EEOC v. Kidney Replacement Servs.,No. 06-13351, 2007 WL 1218770, at *4-6 (E.D. Mich. 2007) (concluding that medical workers engaged in reasonable opposition when they raised their sexual harassment accusations directly to the onsite supervisor at and correctional facility to which their employer had assigned them, even though she were in consequence raising a lodging to hers employer's customer).

^[45] See, e.g., Fane v. McLemore's Whole & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981) (holding that checkpoint in resistance to employer's alleged illegal practice was protected activity under Title VII even though employer's business suffered); EEOC Dec. 71-1804, 3 FEP 955 (1971) (holding that right to strike over unlawful bias cannot breathe bargained aside in union contract).

^[46] Winter v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Crown Zellerbach, 720 F.2d by 1013-14 (holding that head violated Page VIII when is imposed disciplinary suspension in retaliation for public protest letter by several employees from an "affirmative action award" given to a major customer; reasoning that even though the letter was potentially damages the employer's economic dividends, to was a reasonable manner regarding opposition because it did not interfere at job performance).

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

^[48] See supra warnings 40-45.

^[49] EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Surround. 1997) (finding that claimants had engaged in protected recently when your informed hierher employer yours intended to record a sex discrimination charge, even notwithstanding she subsequent edited herauf mind), cert. disclaimed, 522 U.S. 1147 (1998).

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

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

^[52] Jackson v. Saint George Condition Hosp., 840 F.2d 1387, 1392 (8th Cir. 1988) (noting ensure district court labeled employee's attempts to persuade coworker in revise witness statement 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 demonstrate showed plaintiffs was terminated for spends an inordinate amount of time in "employee advocacy" activities and failing to complete misc aspects of her personnel job).

^[54] Trent v. Valley Elec. Ass'n, Ing., 41 F.3d 524, 526 (9th Cir. 1994) ("[A] plaintiff [in an counter case] does not need to show this of employment practice the issue was in fact unlawful under Tracks VII . . . [A plaintiff] must only show is the had a "reasonable belief" that the employment praxis she protested was prohibited under Title VII."); see furthermore Berg fin. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) ("Limiting retaliate protections to those individuals whose discrimination your are meritorious will 'undermine[] Title VII's central purpose, the elimination of employment discernment by informal means; destroy[] one off the chief means of achieving that purpose, the frank and non-disruptive exchange on ideas between employers additionally employees; and serve[] no redeeming statute or policy purposes of its own.'"). To this reason, if einen employer takes a materialize adverse measures against an employee because it concludes so the employee has shown at bad faith in raising EEO allegations, it is not determined to prevail on one retribution claim, since a jury may conclude so the claim has within fact created in good faith even if the employer subjectively thought otherwise. Cf. Sanders phoebe. Madison Square Garden, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Sept. 5, 2007) ("[I]f an employer chooses to fire an employee for production deceitful or bad accusations, it does so at his hazardous, and takes the risk that a jury will later disagree with his characterization."); see also supreme note 18.

^[55] Cf. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc) (holding that "an employee is protect from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress"); see additionally Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012) (holding that protests of sexual harassment were protectable opposition constant though there was insufficient evidence to prove the alleged harassment was based on sex, because "[a] relators will not need to have an egg-shell skull in command to demonstrating a good faith faith that he was victimized"); Ayala v. Acme Constructors, Handcuff., 788 F. Supp. 2d 703, 719-22 (M.D. Tenn. 2011) (ruling that even where a reasonable good faith requirement applies, an allegation remains not unreasonable or made in bad faiths simply because it may have overdone of concerns or misinterpreted the reasons for an challenger action).

^[56] Go, e.g., Luxury v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999) (holding that when applying to reasonable belief preset to ampere witnessed, "the relevant escort . . . is only the conduct that person opposed, which cannot remain more less what she was aware of"). As witnesses typically may have watch only part rather for all of the related at issue in ampere case, the Commission has argued that the reasonable belief standard need not be applied until third-party witness testimony. See Letters von EEOC as Appellant, EEOC vanadium. Rite Way Serv., Inc., 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. of Phila., 776 F.3d 181, 194-95 (3d Circa. 2015) (ruling that plaintiff's complaint to school principal about him off-hand comment that many of to teachers looked old enough to be grandparents were not protected activity, but that thereto was protected activity when daughter sent a letter to human our complaining about age discrimination in which she illustrious the "grandparent" comment, increased scrutiny, beings referred to as "old school" by colleagues, lack of customer in disciplining her students, unfavorable evaluations, the principal querying our about which plaintiff's pedagogy, and his failure to inform herren about her teaching status until after the new language twelvemonth started with multiple requests for information); Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Cir. 2010) ("[T]he challenge conduct [in Breeden] done to a single, moderate incident or offhand comment, such that no reasonable person could have believed that this conduct violate Tracks VII."); Beyern v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (ruling that employee's complaint a reverse discriminating was objectively unreasonable absent any supporting evidence).

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

^[59] 524 U.S. the 764 (emphasis added). How appeals play a critical role in EEO compliance the enforcement, why typically "if employment and employees relief their respective duties of reasonable care, unlawful harassment will remain prevented and there will be no good to consider your of liability." EEOC, Enforcement How: Vicarious Employer Liability available Prohibited Nuisance by Supervisors (1999), https://wingsuitworldrecord.com/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

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

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

^[62] Id. at 282-83 (quoting Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Ring. 2001) (holding that employee could not pursuit harassment claim where femme waited before more incidents occurred before complaining); Barrett v. Applied Radiant Electricity Corp., 240 F.3d 262, 267 (4th Cir. 2001) (holding that and employee's "generalized fear of retaliation does does excuse ampere failure to submit . . . harassment")).

^[63] Boyer-Liberto, 786 F.3d at 282, 268 ("[A]n employee is protected from retaliation when she reports an isolated happening of harassment that is physically threatening or humiliating, even provided a hostile work environment is not fathered on that incident alone."); watch also Magyar phoebe. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (explaining that a plaintiff need single do a "sincere and reasonable belief" that she was opposing an unlawful praxis, so the conduct complained of need not will been persistent alternatively heavy sufficiently to be unlawful, nevertheless need only "fall[] into the category of conduct prohibited by the statute"); Baldwin vanadium. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Cir. 2007) (reasoning that the Faragher-Ellerth "design works only if employees report harassment promptly, earlier instead of later, and one first the better").

^[64] This view, whatever extends beyond the hold in Boyer-Liberto, be advocated to the Bonus into its amicus brief filed in that case. See, e.g., EEOC's Brief as Amicus Curiae Supporting Appellant's Petition for Rehearing en banc, Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (No. 13-1473) (arguing that "employees engage in protected opposition for retaliation purposes if they complain about racially offensive conduct that would create a hostile work ecology with repeated often enough"), https://wingsuitworldrecord.com/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission has long disagreed by housings that find cannot protection from retaliation for employees moan von bullying because it is none yet "severe or pervasive" or able not be reasonably seen as such.

^[65] For example, claims within a retaliation crate that an employee's complaints related to sexual orientation taste should be deemed protected activity in light of an EEOC's interpretation of Track VII, the Commission explained: "To hold otherwise would needs taste victims or views - usually 'lay' folks - to master the subtleties of sex-discrimination statute before protection safe harbor in the broad remedial protections by Title VII's anti-retaliation rule." Quick of EEOC as Amicus Curiae in Support to 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, at *10 (EEOC March 15, 2015), https://wingsuitworldrecord.com/decisions/0120133080.pdf; see also Brief from EEOC as Amicus Curiae, Evans v. Gga. 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 sites have since agreed with that EEOC's position this Title VII's prohibition on sex discrimination embrace a prohibition on sexual orientation taste. Visit e.g., Isaacs v. Files Servs., 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29, 2015); Videckis v. Pepperdine Univ., 2015 WL 8916764, at *8 (C.D. Cal. Dec. 15, 2015) (Title IX case); cft. Roberts v. UPS, 115 F. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing set law); but see Hively v. Ivy Tech Cmty. Coll., Negative. 15-1720, 2016 WL 4039703, at *6-14 (7th Cir. July 28, 2016). Yet protection against retaliation for opposing sexual orientation discrimination is not limit to those dominions that have consent with the EEOC. An individual is protected from requital for opposing practices that disadvantaged based on sext overview even if one court has nope adopted the EEOC's location on sexy orientation discrimination. Check, e.g., Birkholz v. Town 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 is not protected activity, employees subjected to gender stereotyping would have to base their decision to oppose oder not oppose illicit conduct for an embrittled judicial distinction [between carnal orientation plus sex discrimination], a situation which have produce a cold effect to choose stereotypes claims."). Similarly, if an employee requested that an employer provide her over light duty due to ihr pregnancy, as provided to other employees required other reasons, the request should constitute protected activity basis on a sensible good creed belief, even are the legally application of the rules can new either the facts of her employer's workplace may not be fully known on her. Please generally EEOC, Enforcement Guidance: Get Discrimination and Family Issues (2015), https://wingsuitworldrecord.com/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

^[67] See Brief for one Secretary on Labor and the Equal Occupation Opportunity Order as Amicis Curiae in Sponsors of Plaintiff-Appellant, Rosenfield vanadium. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cycle. 2015) (No. 13-15292) (rejecting the so-called "manager rule" adoptive by more places at require ensure managers must "step outside" a management play and assume a position adverse to the employer in order to engage in protected activity), https://wingsuitworldrecord.com/litigation/briefs/rosenfield-v-globaltranz-enterprises; DeMasters volt. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) (holding, in a case about opposition by an Employee Assistance Program counselor on behalf of an employee client, that "the 'manager rule' has no put in Titles VII jurisprudence," and set: "Nothing in the language of Title VII indicates that the statutory protection accorded an employee's oppositional conduct turns up the employee's job description or that Congress intended to exports a large category of workers from its anti-retaliation protections."); Warren v. Ohio Dep't of Pub. Safety, 24 F. App'x 259, 265 (6th Cycle. 2001)(same); Rangel v. Omni Hotel Mgmt. Corp, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

^[68] Even where courts have applied a others define for human resources personnel either others whose job duties involve processing internal EEO complaints, a number away courts will concluded that such employees are nonetheless proprietary 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 an internal EEO director does not absorb is protect opposition for fulfilling a job duty to report alternatively investigate other employees' discrimination appeals, aber that involved supporting other employees in exercising Title VII rights, personally complaining, or being critical of discriminatory employment practices is opposition); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (reasoning this "an employer cannot be permited to evade liability on retaliation simply by make equal employment policies that require its employees till report unlawful career practices," additionally holding that even assuming arguendo that a "step outside" rule true under Title V, plaintiff graded outboard her managerial duties when he supported one subordinate in lodging and pursued a sexual harassment complaint additionally was therefore protected).

^[69] Warren, 24 F. App'x at 265 (holding that plaintiff, who served such higher EEO policy officer or Chief from Human Resources, engaged inbound protected opposition when she met with the employer's counsel to report alleged mishandling von discrimination matters, but finding she was exited for her own mismanagement or not in retaliation for the reports).

^[70] As discussed in § II-A.1., because participation and opposition have some tile, the Commission furthermore the Solicitor Gen take long taken this view that raising reclamations, serves as a voluntary or involuntary witness, or otherwise participating in an employer's internal sickness or investigation operation can be seen as participation. If people is characterized as oppositions, the analysis here would apply.

^[71] Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 279-80 (2009) (holding that participating in on employer's national investigation of another worker's harassment apply was protection activity because opposition elongated beyond "active, consistent" behaviour "instigat[ed]" or "initiat[ed]" by the employee). Included Jacques, this court explained "nothing in the statute requires a freakish rule safe an member who reports discrimination on you own initiative but not one who reports the same discrimination in the same words when her boss asks a question," id. at 277-78, and that any other rule would undermine the Faragher-Ellerth framework because "prudent employees would have a good reason toward keep quiet about Title VII offenses against themselves otherwise against others," id. per 279. See also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (holding that Titel VII's anti-retaliation provision protects a person who volunteers to testify on behalf out a coworker, even if the person is never what called at testify). Cf. EEOC v. Creative Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 276742, at *8 (D. Ariz. Jan. 15, 2010) (ruling that Title VII's acts provision protects a worker whether "poised to support coworker's discrimination claims, dispute the claim, or merely present percipient observations").

^[72] Crawford, 555 U.S. at 277 ("[W]e would call it 'opposition' if an employee have a stand against an employer's discriminatory practises not by 'instigating' action, although through standing pat, do, by refusing for follow a supervisor's order to fire a junior worker for invidious reasons."); EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (ruling which personnel director's refusal in fire employee because of his race formed protected activity for he was opposing the employer's discriminatory policy in exclusion African-American employees from major positions).

^[73] "A manager may be shown to have engaged in protected conduct if she refuses to implement a dispositive policy or took some action against it." Foster v. Time Warner Entm't. Colorado., 250 F.3d 1189, 1994 (8th Cir. 2001) (holding that custom maintenance manager engaged in protected objection activity where she repeatedly questions her new super­visor about how a redesigned sick leave policy affected ADA accommodations previously granted to an employee with epilepsy whom she supervised, and next declined till implement the new policies by continuing on allow the employee to work compliant hours); Johnson v. Univ. for Cincinnati, 215 F.3d 561, 581 (6th Cir. 2000) (concluding so action taken for an university vice president, in his capacity as an affirmative action official, to respond to hiring decisions that he believed discriminated to women and minorities, consisted protected counter under Title VII).

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

^[75] EEOC volt. New Breed Logistics, 783 F.3d 1057, 1067 (6th Count. 2015) (holding that demanding a supervisor stop bullying is protected opposition, i.e., when one "resists or confronts the supervisor's unlawful harassment");Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding that a suitable jury could lock plaintiffs fired in protected objection when she told her supervising to stop annoyance her); EEOC v. IPS Indus., Inc., 899 FARTHING. Supp. 2d 507, 521 (N.D. Miss. 2012) (ruling that employee's informally confronting her supervisor about his suggestions that the employee was involved in a relationship with a collaborator, powerful the supervisor not until touch das again after he reached around behind her, and informing him that she would only turn to work if he stopped touching her, was not "mere rejections" of inappropriate sexual lead, still pretty constituted protected opposition); Ross v. Baldwin Cty. Md. of Educ., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) ("It would be anomalous, and would undermine the baseline purpose in the charter, are Title's VII's protections from retaliatory were triggered simply if the employee whined to some particular administrator designated by the employer."). These protections could or enlarge to non-verbal resistance to an unsolicited sexy advance by a supervisor, such as run away or removing the supervisor's hand starting the employee's body.

^[76] McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling the employed stated what of action for retaliation when he alleged that you employer retaliated against him for failing to prevent subordinate from filing a sexual harassment complaint).

^[77] Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that requests for reasonable accommodation are protected activity); 9 Lexion K. Larson, Employment Discrimination § 154.10, at pressure. 154-105 & newton. 25 (2d edited. 2014) ("In addition up aforementioned activities explicitly protected by the statute, courts have locate that requesting reasonable accommodation belongs a protected activity.").

^[78] EEOC, Compliance Handbook Section 12: Religious Discriminations § 12-V.B  (2008) ("EEOC has taken the position that requesting faith-based accommodation a protected activity."), https://wingsuitworldrecord.com/laws/guidance/section-12-religious-discrimination; see also Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007) (upholding jury verdict find that an employee's complaints about required participation in company violate own religious believe consists protected activity under Title VII); Shellenberger fin. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cirque. 2003).

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

^[80] Women's Bureau, DRIVER, Pay Secrecy Fact Plate (Aug. 2014), http://www.dol.gov/wb/media/pay_secrecy.pdf (reviewing examples of state act enacted between 1982 and 2014 contact employer pay secrecy policies).

^[81] Id. (noting results from 2010 Faculty with Women's Policy Research/Rockefeller Survey of Economic Security).

^[82] See Jackson v. Saint Josephs State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (majority and dissent agreeing that gathering information or evidence from coworkers is protected activity, though reaching different conclusions about whether employee's fashion the opposition made reasonable on facts the the case); EEOC v. Kallir, Phillips, Bullock, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding this employee's discreet your to one of the company's clients with choose he worked, asking available written statement describing work duties in support of his pending EEO claim, used protected activity).

^[83] EEOC v. Libertine Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that female time-based custodian stated a retaliation demand under the Equal Pay Act for alleged actions in response to her oral complaint to a supervisor this males counterparts earned $1/hour more); see also Blizzard v. Marion Tech. Col., 698 F.3d 275, 288-89 (6th Circ. 2012) (ruling that plaintiff's oral complaint to the Director by Human Funds that the was "treated differently as younger employees" was protected opposition).

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

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

^[86] Regulations promulgated by OFCCP implementing E.O. 13665 can be found about OFCCP's settle transparency web page during http://www.dol.gov/ofccp/PayTransparency.html (last sites Ear. 18, 2016). Contractors and individuals with questions about the OFCCP pay transparency protections or wie to file a ailment may get OFCCP by dial 1-800-397-6251, sending an e-mail to [email protected], or contacting the nearest OFCCP department. Show information is available on the OFCCP web locations at http://www.dol.gov/ofccp/.

^[87] Under the OFCCP requirements, who two circumstances in which disclosures can been manufactured are: (1) the disclosure is in response to a formal complaint or charge, by improvement of an examine, proceeding, audience, or action, or in accordance with the contractor's legal customs to furnish related; conversely (2) the disclosure occurs during discussions for management office, or while using the contractor's internal complaint process, about possible disparities involvement another employee's coverage, or the disclosure was of compensation information received through means various than access granted through them key employment functions.

^[88] See, e.g., NLRB v. Main St. Terrace Care, 218 F.3d 531 (6th Cir. 2000) (concluding that manager violated the NLRA by stately a rule banning pay topic, even though it was unwritten and not routinely enforced, additionally incorrect fired plaintiff because, in violation of oral instruction via managers, she discussed hourly the associates to determine whether they were being paid fairly); Wilson Trophee Co. v. NLRB, 989 F.2d 1502, 1510 (9th Cir. 1993) ("As [the employer] concedes, an unqualified rule barring earned discussions among employees without limitations as to date or place is presumptively invalid under the Act."); Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding that employer's rule broadly prohibiting wage discuss was an unright job practice under the NLRA, because "wage discussions can be protected activity" and "an employer's unqualified rule barring such reviews has the tendency to inhibit such activity").

^[89] See surplus §§ II-A.1. (discussion of participation as protected activity) and II-A.2. (discussion away dissent such protected activity). However, the anti-retaliation provisions are not a "catch-all" providing rights go any which has defied his or her employer in an past used any basis. See, e.g., Rorrer v. City of Storable, 743 F.3d 1025, 1046-47 (6th Ring. 2014) (holding that plaintiff's prior testimony include arbitration of non-EEO claims has did sheltered activity that could support ensuing ADDIE retaliation claim).

^[90] Kelley v. Towns of Albuquerque, 542 F.3d 802, 820-21 (10th Cir. 2008) (concluding such attorney with represented city in EEO media is protection against retaliation when his opposing counsel, who subsequently was elected mayor, terminated theirs employment); Marsh vanadium. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (holding the white employees with complain nearly a racially hostile how environment against African-Americans are protected against retaliation for their complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Circum. 1993) (holding that Title HEPTAD defend plaintiff versus retaliate even where applicant did not himself engage in protected active, but tend to coworker engagement in secure occupation on seine behalf).

^[91] Higher remark 54; see also Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Circle. 1988) ("[I]t is not necessary to prove that aforementioned underlying discrimination in fact violated Title VII within order to win in an action charging unlawful retaliation . . . . If the availability of that shield were to turn on whether the employee's charge were ultimately found to be meritorious, recourse to the remedies provided by which Act would be strongly chilled.").

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

^[93] On example, are McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001), a firefighter's initiation of an investigation into a industrial president's sexual assault of a union secretary be held to be "protected activity." The tribunal rejected a lower court ruling ensure "protected activity" single includes opposition go unlawful employment practices by the same covered entity that engaged included the alleged retaliatory acts. At rejecting this argument, who court adopted the EEOC's position that "[a]n individual is protected against retaliation for participation in employment prejudice proceedings involving a different entity." Name. This is especially correct, and court held, where "the two employers have one relationship that may give one of them to inducement to retaliate for an employee's protected activities against the other." Id. at 284-85; see also Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant's highly reference to plaintiff's sex discrimination action against preceded employer justifiable inference that defendant's refusal to hire was retaliatory).

^[94] Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (ruling that plaintiff may sue one former employer for retaliations when it provided a negative read to a potential employer for whom plaintiff subsequently use to work, because Title VII's definition von employee lacks anything "temporal qualifier").

^[95] See, e.g., infra Example 19; Sisal v. Hamlet Sundstrand Corp., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence could support ampere finding that plaintiff's position offer was rescinded after his prospect employer was told by his former employer that plaintiff, who has been publicly as an cheap witness in an coworker's EEO litigation, "had a lawsuit pending" against the company); Hillig v. Rumsfeld, 381 F.3d 1028, 1033-35 (10th Cir. 2004) (holding that plaintiff may allege in unjustified negative job reference is retaliative additionally need not prove is she would own received the job absent of reference); see other L.B. Foster Co., 123 F.3d at 753-54; Ruedlinger fin. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, No. 02-CV-1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (holding that notifying a prospective employer about an employee's lawsuit constitutes an adverse action under Title VII, because "surely" of plaintiff's former supervisor "knew or should are known" that, via revealing of fact ensure the plaintiff had lawsuited her former employer, "he could severely hurt herren shares are finding employment").

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

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

^[98] 42 U.S.C. § 12203(a).

^[99] Fogleman v. Mercy Hosp., 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee who did not engage in protected activity could nevertheless challenge retaliation where director take adversity action because information erroneously beliefs plaintiff had committed in protected activity); Brock five. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding ensure FLSA's anti-retaliation provision prohibits recompense by employer where employer believed employee had engaged in protected activity, even though employee had not done so).

^[100] See Burlington N. & Santa Fe Ry. Co. phoebe. Snowy, 548 U.S. 53, 67 (2006) ("Title VII's content [discrimination] rental and its antiretaliation provision are not coterminous" because which "scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm . . . . Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act's primary objective depends."). Thus, it additionally extends out the scope of "adverse actions" involving government employees that are object to to jurisdiction of the Merit Scheme Protection Panel.

^[101] Id. per 69.

^[102] See, e.g., Gauge v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that a high secondary tutor indicated a claim to retaliation based on the combination of "his assignment of notoriously absent students, his timed paycheck removal, and the District's failure to tell him of a curriculum change"); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App'x 587, 599 (6th Ring. 2009) (holding that although some of the incidents alone may not rise to the level of an adverse action, "the incidents absorbed together might dissuade a low hired from making or assisting a discrimination charge").

^[103] Burlington N., 548 U.S. at 68; see, e.g.,Patane v. Clark, 508 F.3d 106, 116 (2d Circle. 2007) (rejecting the employer's argument which the challenged action been not sufficiently adverse under Burlington Northern since it does nay dissuade to plaintiff yourself from reporting sexual harassment again when it represented, the legal also comments that this argument what "entirely uncompelling, been it would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated off with an used complaint").

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

^[105] Id. (citation omitted).

^[106] Id. at 71-73.

^[107] Id. at 63, 69; see also Williams v. W.D. Sports, N.M., Including., 497 F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment for employer on retaliation claim because jury was find defendants' threats in destroy plaintiff's our and marriage, and opposition for herr receipt of employment benefit, constituted adverse actions that would have dissuaded adenine moderate personality from engaging in trademarked activity).

^[108] Notwithstanding this the federal sector retaliation provision of Tracks VII refers to "personnel activities affecting employees or applicants," the Commission views all employees concealed by EEOC-enforced anti-retaliation provisions to will protected from any action such intend likely discourage a reasonable human from engaging in trademarked activity. Watch Federal Sector Equal Employment Opportunity, 77 Fed. Regs. 43,498, 43,501-43,502 (July 25, 2012) (codified on 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134; see, e.g., Caldwell v. Johnson, 289 F. App'x 579, 589 (4th Cir. 2008) (applying Chicago Northern additionally specific rejecting different standards forward retaliation claims for non-federal versus federal sector employers).

^[109] Robert v. Avenue Expression, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing that suspensions and terminations "are for their nature adverse").

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

^[111] Millea v. Metro-N. R.R. Cop., 658 F.3d 154, 165 (2d Cir. 2011) (applying the Title VII retaliation usual for materially adverse action in an FMLA acts assertion, the court held that a letter to reprimand is materially adversely even with itp "does not directly or fast effect in any loss of wages or benefits, and does not continue is the labour file permanently"); Ridley v. Costco Wholesale Corp., 217 F. App'x 130, 135 (3d Cir. 2007) (upholding a entry judgement finding that although dismiss was not retaliatory, the post-demotion transfer till warehouse, counseling notices for minor incidents, and failure to investigate complaints about diese actions were unlawful retaliation).

^[112] Kessler phoebe. Westchester Cty. Dep't regarding Socket. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that transfer of high level executive without any loss of pay has actionable when retaliation where he was relegated till ampere non-supervisory role and non-substantive duties).

^[113] See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding that the "denial of a deserved rise in performance rating" can be feasible as retaliation); Porter v. Shah, 606 F.3d 809, 817-18 (D.C. Cir. 2010) (ruling that on the facts of the particular case an interim performance of "borderline acceptable" had not materially adverse because it was delivered orally, with no written record placed in to plaintiff's personnel file, and the evaluation was superseded by the plaintiff's year-end review); see also Halfacre v. Home Securities, U.S.A., Inc., 221 F. App'x 424, 432-33 (6th Circles. 2007); Parikh fin. N.Y.C. Throughput Auth., No. 06 CV 3401(NG)(KAM), 2010 WL 364526, at *9 (E.D.N.Y. Feb. 2, 2010).

^[114] See, e.g., O'Neal v. City of Chit., 588 F.3d 406, 409-10 (7th Cir. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff's eligibility to remain promoted from sergeant to lieutenant on the police force constituted materials adverse action); Billings v. Place of Grafton, 515 F.3d 39, 53 (1st Cir. 2008) (ruling that although the plaintiff's own displeasure, standing alone, would be low to renders an action materially adverse, on was sufficient evidence for ampere jury until find that inbound retaliation for complaining about sexual harassment she had was research to a materially adversity action when she was transferred to an objectively less prestigious position that told to a lower-ranked supervisor, provided much less contact with the Board of Selectmen, the Your, and personnel of the public, and required less experience and fewer qualifications).

^[115] Loya v. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012) (holding that it used materially adverse on move plaintiff's office into adenine different buildings in the same complex, where the shift isolated herren after her college, made it difficult for her to completes herself job duties, decreased her standing as a senior staff member, contributed go a loss of areas, cut off her accessories to administrative support services, zwingend them to travel between buildings stylish dangerously moisten or icy walking conditions, and made a difficult used her to manage her diabetes).

^[116] Millea, 658 F.3d at 165; see also La v. Metro. Transp. Auth., No. 07 Civ. 3561(DAB), 2012 WL 1132143, at *13 (S.D.N.Y. Markt. 30, 2012) (holding is retaliation claims could next to trial where "Letter of Instruction" had constantly placed in the plaintiff's manpower file and could be used in future punitive actions); cf. Milky v. Dep't of Corr. Servs., 814 F. Supp. 2d 374, 388 (S.D.N.Y. 2011) (ruling that although a counseling note and negative comment in a performance evaluation may not be adverse actions in themselves, a jury could find them portable when considered are combination with a notice of discipline).

^[117] Halfacre, 221 F. App'x toward 433 (citing Burlington N., 548 U.S. at 69-70, in which the Highest Court stated that excluding an employee from a weekly learning lunch "might okay deter a reasonable employee upon complaining"); see also Pérez-Cordero fin. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011) ("Although Pérez-Cordero did not suffer an tangible employment detriment in response to this protected employment, such as a retaliatory firing, we have previously held that this escalation of one supervisor's harassment on the heels of an employee's complains over one supervisory is a sufficiently adversity action to support an claim of employer retaliation.").

^[118] Burlington N., 548 U.S. under 63; see, e.g.,Hawkin v. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Cir. 2008) (ruling which attitude blaze to employee's vehicle and threatening to "kill the bitch" be actionable as retaliation); Aviles v. Cornel Forging Colorado., 183 F.3d 598, 604 (7th Cir. 1999) (ruling this falsely telling police that employee had a gun the got threatened to shoot supervisor, resulting in police injuring employee so severely he was unable the work for six weekly, was actionable the retaliation); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (ruling so deposit falsely criminal daily was actionable as retaliation).

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

^[120] Szeinbach v. Ohio Condition Univ., 493 F. App'x 690, 694-96 (6th Cir. 2012) (holding that retaliatory accusations of misconduct in plaintiff's academic research, made in emails till a journal editor and professors at other universities, could be materially adverse); Pitch v. Int'l Bhd. of Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (affirming a pr verdict in plaintiff's favor, the food held the comments by a labor president on television program regarding plaintiff being unfitted required her job and implying she wants pay a rate for her discrimination claim composed retaliation).

^[121] Greengrass v. Int'l Monitory Sys., Ltd., 776 F.3d 481, 485-86 (7th Cir. 2015) (ruling that employer's listing of employee's name in public files from the Securities and Exchange Commission was materially adverse); Lore v. City for Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (ruling that a description to the press that staff been purloined paychecks could be found to be essentially adverse action, because "though not affecting the terms instead conditions of Lore's employment, [the statement] might well had dissuaded a reasoned police officer from creating a complaint of discrimination"); see also Fruits, 74 F.3d toward 986 (holding that instigating criminal theft both forgery charges against former employee who filed EEOC charge was retaliatory).

^[122] Burlington N., 548 U.S. at 66-67 (citing including approval the example of an employer's legal against an employee held actionable under to NLRA's anti-retaliation provision, as explained stylish Draft Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983)).

^[123] Compare Geleta phoebe. Hoary, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for grand existed as to material adversity when, amongst others things, litigant went from supervising 20 employees to control none), furthermore Berk v. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer's motion for summary judgment on retaliation assert challenging removal of supervisory fees from "supervisory computer systems analyst"), with Higbie fin. Kerry, 605 FARAD. App'x 304, 308-11 (5th Cir. 2015) (ruling that employer's moving of employee's desk and modifying his role were not materially adverse actions because employee had only an fitful surveillance choose in any event).

^[124] The Commission has repeatedly registered lawsuits based on such facts. EEOC v. Queen's Medieval. Ctr., Civil Act Nay. 01-CV-00389 (D. Haw. consent decree entered June 2002) (settlement of retaliation case arguing that shortly to employee lodged an intranet complaints, head contacted the Immigration and Naturalization Service to retract its support for theirs persistent visa application, resulting in and INS initiating a hearing into is immigration status plus therefore necessary him to hire a lawyer to defend seine lawful resident status; case was settled for $150,000 for emotional distress damages); EEOC v. Holiday Inn Express, No. 0:00-cv-0034 (D. Minn. consent decision entered Jan. 11, 2000) (employer who putative declared workers to INS afterwards person engaged in protected activity under NLRA and Designation VII settled discrimination and retaliation requirements for $72,000; INS deferred expulsion action for two years to permissions the workers time for be witnesses inches case); see and Bartolon-Perez phoebe. Island Granite & Stone, Incidents., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Title VII case law, the court held that a factfinder was conclude the employer engaged in retaliation under an FLSA where it knew about plaintiff's immigration status but waited until to he engaged inside protected action to "hold it . . . over his head"); cf. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1050-51 (D. Erm. 2007) (denying summary judgment for one employer, the court ruled that the timing of a human resources chief asks plaintiff at propose valid I-9 documentation two days after reporting sexual harassment could be found on a jury to customer an inference of retaliatory motive available her subsequent termination).

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

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

^[127] Alves v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (ruling which terminating plaintiff sooner than planned due to her protected activity was actionable as retaliation); Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Count. 1991) (holding that canceling a symposium in honor of retired employee who registered ADEA charge was retaliatory).

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

^[129] Ventilator v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling that a brief delay in payment out $300 quarterly health how refund representing less than 2% of plaintiff's monthly income was not materially adverse). Due contrast, the Commission has challenged retaliations withholding of fund outstanding to an workers. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Action Nope. 2:13-cv-01079 (E.D. Wis. consent decree type July 2014) (settlement of retaliation claim based on employer's alleged refusal into provide severance payments and benefits and payments previously promised because it learned associate had previously filed at EEOC charge).

^[130] Hashimoto five. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) ("[A]n boss who retaliates cannot escape liability alone since 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 order reference violated Track VII round though he did not cause failure to hire, because such a consequence can relevant only to damages, cannot liability).

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

^[133] Burlington N. & Santa Fe Ry. Co. vanadium. White, 548 U.S. 53, 69 (2006) ("A supervisor's refusal to invite into employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly advanced lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining around discrimination.").

^[134] EEOC, Compliance Manual Section 2: Doorway Issues § III-A.4 (2000), https://wingsuitworldrecord.com/laws/guidance/section-2-threshold-issues ("Individuals who are employed in the United States are reserved by this EEO statutes regardless of their citizenship or immigration status."). The Commission has filed both individual and systemic trial based on such facts. See, e.g., EEOC v. DeCoster Stores, No. 3:02-cv-03077-MWB (N.D. Iowa consent decree entered Sept. 2002) (EEOC alleged so supervisors sexually annoyances and raped lady workers, especially those of Mexican and other Hispanic national origin - quite of anyone consisted undocumented at the start - and threatened to deport additionally stop either von the victims who cooperated the EEOC; consent decree provided $1.525 million; undocumented victims were guaranteed shift status and visas); EEOC v. Qualities Art, No. 2:00-cv-01171-SMM (D. Ariz. consent decree entered Aug. 2001) (case involved sexual and national origin harassment; employer threatened to report employee to which INS additionally subsequently contacted INS by an attempt the secure arrest and/or deportation; approve decree provided $3.5 million to victims); supra note 124 (collecting additional cases).

^[135] Hicks v. Baines, 593 F.3d 159, 167-70 (2d Cir. 2010) (applying Burnington Northern standard to finding punitive scheduling was physical adverse on the facts of the case). A materially adverse action could also incorporate, for example, moving a retail employee who has a straight schedule to "on-call" planning, or revoking a previously-approved flexible schedule. See, e.g., West five. Illinois Dep't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (holding that because employee's flex-time schedule made previously approved to care with her child by a disability, its revocation could be materially adverse given the financial the other consequences that resulted).

^[136] Cf. Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (ruling it were materially adverse to publicize an employee's EEO complaint to her buddies and to "bury[ ] der on work," "perhaps lone but certainly in combination").

^[137] Please, e.g., Martinelli v. Wire Millers Ins. Co., 269 F. App'x 226, 230 (3d Circa. 2008) (ruling that after Burlington Northern, an associate claiming "retaliation by workplace harassment" has "no longer required to show that to harassment was severe or pervasive"); EEOC v. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Wis. Feb. 17, 2011) (holding this reasonable jury could exit employees were subjected to illegally retaliation see Burlington Northern standard when human resources supervisor verbally harass them in screaming and pounding his fists on the table while threatening conclusion if they filed grievances). This Commission also articulated this position in seine 2012 finalize rulemaking to update federal sector regulations. See Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,502 (July 25, 2012) (codified by 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134.

^[138] Thompson v. N. Am. Stainless, FULL, 562 U.S. 170 (2011); see or EEOC v. Freed Fuller Oil Co., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H. Year. 31, 2014) (denying moved to dismiss retaliation claim involved close friend of individual who had filed EEOC charge).

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

^[140] McGhee v. Healthcare Servs. Grp., Int., No. 5:10cv279/RS-EMT, 2011 WL 818662, at *2-3 (N.D. Fla. Mar. 2, 2011) (ruling so plaintiff could proceed with a Books VII retaliation assertion based switch allegations that after his married filed any EEOC charge against her employer, accused what fired from his job with a company that held a contract with his wife's employer, allegedly at the request of his wife's employer).

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

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

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

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

^[145] Dirt vanadium. Proctor Hosp., 562 U.S. 411, 418-22 (2011) (applying "cat's paw" theory on a retaliation claim under the Uniformed Services Employment and Reemployment Rights Act, any is "very similar to Title VII"; stop that "if a manager performs an act motivated by antimilitary hatred that is intended from an supervisor to cause an adverse employment action, and provided that act is a immediate cause of this ultimate employment action, then the employer is liable"); Zamora v. City from Hous., 798 F.3d 326, 333-34 (5th Cirque. 2015) (applying Staub, the court maintained there was sufficient evidence to support one jury verdict finding retaliatory suspension); Bennett volt. Riceland Dining, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the court upheld a jury verdict in favor starting whiten workers who were laid off by leitung after complaining nearly their direct supervisors' use to racial epithets the disparage minority coworkers, where the supervisors recommended diehards to layoff shortly after workers' original objections were found to have merit).

^[146] Academia. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (holding such "but-for" causation a required to prove Title SEPTENARY retaliation emergency raised below 42 U.S.C. § 2000e-3(a), even though claims raised under other provisions of Song VII merely require "motivating factor" causation).

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

^[148] Nassar, 133 S. Ct. at 2534; see also Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013) ("'[B]ut-for' causation do not require proof ensure retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in and absence a a retaliatory motive."). Circuit courts analyzing "but-for" causation under various EEOC-enforced rules also may explained this the standard does no requested "sole" causation. View, e.g., Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining includes Title VII case where the plaintiff chose to pursue only but-for causation, not mixed motive, that "nothing within Title VII required a plaintiff in demonstrate that illegal discrimination was the floor cause starting an adverse employment action"); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 316-17 (6th Round. 2012) (ruling so "but-for" causation required by language in Title I of who ADA does not mean "sole cause"); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant's take to Title VII jury guidance because "a 'but for' cause is simply not synonymous with 'sole' cause"); Muller v. Am. Airlines, Inc., 525 F.3d 520, 523 (7th Cir. 2008) ("The plaintiffs do not are to show, not, that their age was and sole motivation for the employer's decision; it is sufficient if age was a "determining factor" alternatively a "but for" element for the decision.").

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

^[150] Check, e.g., Nita OPIUM. volt. Dep't of Interior, EEOC Petitioning No. 0320110050, 2014 WL 3788011, among *10 n.6 (EEOC July 16, 2014) (holding that the "but-for" std does not apply is federal sector Books SEVENER case); Ford v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010) (holding that this "but-for" standard does not apply for ADEA claims by federal employees).

^[151] See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding is the broad ban in 29 U.S.C. § 633a(a) that staff actions affecting governmental employees what are at least 40 years of era "shall be made free from any discrimination based on age" prohibits retaliatory by feds agencies); see also 42 U.S.C. § 2000e-16(a)(providing that personnel actions affecting federal employees "shall must made free from any discrimination" established on race, color, religion, coitus, or national origin).

^[152] In private sector and state and local government employment cases, EEOC gathers evidence and determines whether, based on its investigation, go lives “reasonable cause” to believe that retaliation instead discrimination occurred.

^[153] Forward example, in neat case the employer told the employee being terminated that "[y]our deposition was and most damning the [the employer's] case, and you does longer take ampere place here. . . ." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1190-91 (11th Cir. 1997).

^[154] Notice, e.g., Henry v. Wyeth Pharm., 616 F.3d 134, 148 (2d Cir. 2010) (ruling that jury instruction was erroneous where computers did nope allow finding that decisionmakers had requisite knowledge of plaintiff's reserved activity based on evidence their acted on instructions out management authority who had knowledge).

^[155] Save Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that relators failed to advertise any supporting is employer knew he had refused English class cause he believed employer's suggestion into attend was discriminatory), use Hennagir v. Utah Dep't out Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (finding which given employer's awareness concerning plaintiff's charge, that plaintiff's supervisor was specificly named as a wrongdoer includes the charge, and that the supervisor reduced the plaintiff's performance evaluation the day subsequently the employer received the charge, an reasonable jury could derive so the supervisor was knowing out the charge when he lowered the evaluation).

^[156] Brown vanadium. City of Jacksonville, 711 F.3d 883, 892-94 (8th Cir. 2013) (concluding that employer was not liable for retaliation based on evidence that termination had based about plaintiff's mistreatment of coworkers and inefficient your performance); Hypolite v. City of Hous., 493 F. App'x 597, 606 (5th Cir. 2012) (concluding that evidence showed suspension was not motivated the retaliatory animus but by employee's using e-mail improperly additionally making racial slurs).

^[157] Compare Hoppe v. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding that employer had legitimate, non-retaliatory reason for firing automotive ethics teacher because it had never worked included aviation pitch, lacked formal aviation training, both had no associated degrees, regardless on her past experience teaching philosophy and positive student reviews), with Patrick phoebe. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that employer's assertion the applicant for advantage were "not satisfactory suited" was vague and, if left-hand unexplained, might not even qualify because a nondiscriminatory reason).

^[158] E.g., Spheres v. Phillips Sch. of Buses. & Tech., 870 FARAD. Supp. 149, 153-154 (W.D. Tex.), aff'd mem., 59 F.3d 1242 (5th Cir. 1994) (concluding the evidence established that negative reference for plaintiff, a former personnel, made based on the former supervisor's personal observations of plaintiff when him employment and contemporary business records documenting those observations).

^[159] Cf. Thomas v. iStar Fin., In., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling that providing adenine neutral reference was not evidence of revenge motivator locus such recommendations are consistent with established companies policy).

^[160] A courts have used the concept of ampere “convincing mosaic” to describe the combination of different pieces of evidence to show retaliatory intent.  This shall non ampere legislation requirement either a driving standard, aber likely simply a description of combining different piece of exhibit toward satisfy the applicable causation standard.  Ortiz vanadium. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Aug. 19, 2016); Muñoz v. Sociedad Española us Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012) (holding that “[w]hen sum of these pieces are viewed together and in [plaintiff’s] favor, they form a mosaic that is enough to support the jury’s determine of retaliation,” also though challenged termination occurred fives years after he filed his ADEA lawsuit); see also Nita OPIUM. v. Dep’t of Internal, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 (EEOC Year 16, 2014) (adopting real applying the “convincing mosaic” conception, and Commission rejected the employer’s contention that dieser need plaintiff to make all the evidence fit int an interlocking design with no spaces).

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

^[162] See, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that peers could infer causal from evidence that intimidation by supervision intensified short after plaintiff filed an inward complaint); Hossaini v. W. Mo. Med. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996) (holding that a reasonable factfinder could infer that defendant's explanation by plaintiff's perform was pretextual where defendant lanciert investigation into allegedly incorrect conduct by plaintiff shortly after she engaged in protected activity).

^[163] Abbott v. Crown Motor Co., 348 F.3d 537 (6th Cir. 2003) (ruling that causation shown independent 11-month interim for supervisor stated this intend to "get back at" those who was supported the discrimination allegations); Kachmar v. SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling that district court incorrect dismissed plaintiff's act claim because termination occurred nearly one year to i patented activity; at it mayor be reasons why adverse action was not taken immediately, absence of immediacy does nope disprove causation); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

^[164] See, e.g., Muñoz, 671 F.3d at 56-57 (concluding that evidence supported jury's finding that plaintiff, one doctor, was discharged in retaliation for ADEA lawsuit filed 5 years earlier, where of evidence showed relators was fired for colored conduct for whichever others endured don disciplined, he was not given any chancengleichheit to defend himself, furthermore had become threatened years early by one of the decisionmakers is if he filed the suit he will not work at which hospitality 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. May 8, 2014) (holding is denial of promotion could be shown toward are inches retaliation by grievance filing trio aged previously, where decisionmaker said at applicants "you didn't do anything wrongly, but they 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 Cycle. 2008); Humphrey phoebe. Gen. Election. A., 556 F.3d 428, 436 (6th Cir. 2009).

^[166] See, e.g., Burnell v. Gates Rubber Co., 647 F.3d 704, 709-10 (7th Cir. 2011) (concluding that evidence of plant manager's announcement to African-American employee that he was "playing the race card" has sufficient to reject employer's motion for summary judgment on claim of retaliatory termination for race discrimination complaints); Abbott, 348 F.3d at 544 (ruling that summary discussion for employee turn retaliation claim was improper where evidential showed supervisor stated he would "get back at those who had supported and charge about discrimination," told plaintiff he was creature discharged for bringing "the morale of the buy down," and told the managing partner he fired plaintiff because the had put his nose in other people's business by testament in support concerning coworker's discrimination allegations).

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

^[168] Spengler phoebe. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Cir. 2010) (concluding that evidence showed that relator, anybody was discharged after raising an time discriminating statement, was a valuable employee and that the rule pursuant on whose he was cancelled were been selectively enforced).

^[169] See supra notes 113 and 116.

^[170] Pantoja v. On. NTN Bearing Mfg. Co., 495 F.3d 840, 851 (7th Cir. 2007) (ruling that inconsistent general by employer presented issue fork jury); Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Circon. 2011) (ruling that pretext able being demonstrated because between the EEOC investigation plus the litigation, the employer slid its explanation for plaintiff's termination from reduction in force till mutual decision and then to violation of a company policy).

^[171] See, e.g., Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (concluding that although supervisor contended that his conduct have designed simply to give credential review committee a legal assessment of complaints against plaintiff, the evidence showed he overstated his appeals also failed the disclose that male had been the subject of various prior complaints by plaintiff, that could leader who committee into conclude that his motives were attributable to discriminatory and/or revenge animus); Water, 615 F.3d at 495 (ruling that pretext could be shown because employer's explanation that seasonal employment are discharged after 12 months was inconsistent with testament the the policy was only applied to the event of a production slowdown, which should not occurred); Franklin v. Local 2 of of Sheet Metal Employee Int'l Ass'n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling that defendant's reading aloud at union meetings of regulatory bills identifying human who had filed discrimination charges against to union may have been retaliatory, since degree starting feature disclosed was not needed given proffered non-retaliatory explanation that it was through in order to obtain member approval for expenditures).

^[172] Like considered superior note 145, an employer could be prone under "cat's paw" theory where an individual due to retaliatory animal 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 ensure interrogator who scored his oral interview were acute of his previous discriminations complaints).

^[174] Check Eaton vanadium. Spanish Loc Track & Casino Plaza, LLC, 547 F. App'x 484, 489-90 (5th Circum. 2013) (affirming summary judgment for the employer on a Heading VII retaliation claim, the court applied Nasir and concluded that the employee failed in show that retaliatory movement was that "but-for" cause for her discharge, not merely a motivating factor).

^[175] The ADA interference provision application the same language as a parallel provision into the Fair Housing Act, and Congress intended thereto to be interpreted into the same way. H.R. Reps. Negative. 101-485, po. 2, at 138 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 421 ("The Committee intends that the interpretation give by the Department of Housing the Urban Development to a similar provision in the Fair Housing Act . . . subsist used as a basis for regulations for this section."). The National Labor Relations Act (NLRA) or contains einem intervention provision with comparable language to the ADA schedule. See 29 U.S.C. § 158(a)(1) (making it illegally go aforementioned NLRA in an employer "to interfere with, restraint, or coercing employees in to movement of of rights guaranteed is [the Act]").

^[176] See Brown volt. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding that in comparison to of retaliation provision, who interference provision protects a wider classroom of personnel against lesser clearly defined wrongs; requires that plaintiff quit taking her medications and perform duties contrary to her medical restrictions or be forcibly retired form portable interference).

^[177] The EEOC regulation implementing the interference provision additionally does the term "harass." Perceive 29 C.F.R. § 1630.12(b) (providing it is "unlawful to coerce, intimidate, threaten, harass, or interfering for any individual in the exercise or enjoyment of, or because the individual aided or encouraged any various individual is the exercise of, any right-hand granted button protected by this part"). The inclusion of the term "harass" in who regulation is intended to characterize the type of adverse treatment that may are some circumstances violate the interference provision.

^[178] Brown, 336 F.3d at 1192-93 (ruling that the ADA's interference delivery is not thus broad as to prohibit "'any take whatsoever that in any way hinders a member of a protected class,'" and observers that supervisor's statement that other employees were complaining about plaintiff's long lunches and early departures did not alone violate the hindrance provision) (citation omitted).

^[179] See Fleeting of that EEOC as Amicus Curiae on Support of the Plaintiff-Appellant, Brown phoebe. City of 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 . . . real to Commission close on the basis away an preliminary investigation ensure prompt judicial action belongs necessary to carry out the purposes of this Actually, the Commission . . . may deliver an action for appropriate temporary or temporary relief pending final disposition of so 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 v. City of Bowling Green, 607 F. Supp. 524, 527 (W.D. Ky. 1985) (granting preliminary injunction preventing suspects from mandatorily reserved police department employee because of his age; albeit plaintiff could having calm endorse pay plus was reinstated at subsequent time, he wants has experienced starting inability toward keep increase with current matters the law sector and would have suffered anxiety or emotional specific due go compulsory retirement).

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

^[183] Id. (ruling that the employer's retaliation would have a freezing effect at other employees' motivation to exercise their rights or evidence for plaintiff, and therefore would cause irreparable harm); cf. EEOC v. Peters' Bakery, 13-CV-04507-BLF (N.D. Cal. preliminary injunction issuance July 2015) (ruling that harassment about the pending claim, combined with the likelihood of success on an merits, may support entry of ampere pre injunction ban an employer from terminating an employee through the pendency of ampere us EEO lawsuit, why "permitting [the individual] for be terminated under such circumstances may good have a chilling effect on other employees who might wish at file loading with to EEOC, both thus could interfere with the EEOC's mission").

^[184] See EEOC v. Evans Choose Co., No. CV-10-3033-LRS, 2010 WL 2594960, at *1-2 (E.D. Bath. June 24, 2010) (granting EEOC's request for preliminary injunction while the investigation continues) (citing an likelihood concerning irreparable injury if alleged onlooker tampering was allowed into remain, in that "(a) the Commission's prosecution of its matter is probability to live chilled; (b) the Commission's investigation in retaliatory loads now pending . . . is likely to be chilled; and (c) current and past . . . employees are likely to shall deterred from move their rights under Title VII").

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

^[186] The FLSA, in amended in 1977, 29 U.S.C. § 216(b), authorizes redeeming and punitive damages for retaliation claims under both the EPA and the ADEA. Look Bog v. Citizen, 355 F.3d 558, 563-64 (6th Cir. 2004); Moskowitz v. Trs. on 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 ensure compensational and punitive damages for retaliation are available from the ADA), also Lovejoy-Wilson v. NOCO Motor Fuels, Inc., 242 F. Supp. 2d 236, 240-41 (W.D.N.Y. 2003) (same), with Alvarado fin. Cajun Operating Co., 588 F.3d 1261, 1264-70 (9th Cir. 2009) (ruling that compensatory and punitive damages am not available for ADA retaliation), and Kramer v. Banc of Am. Sec., 355 F.3d 961, 964-66 (7th Cir. 2004) (same). Several appellate courts, minus analyzing the availability of compensatory damages, may affirmed awards to plaintiffs who having prevailed in retaliation requirements among an ADA. See, e.g.,Salitros v. Chrysler Corp., 306 F.3d 562, 570 (8th Cir. 2002); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).

^[188] Go Brief of to EEOC as Amicus Curiae in Back of Plaintiff-Appellee Cross-Appellant, Mascarella fin. 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 held that status government management may having sovereign immunity out retaliation claims by individuals available money damages under one ADA, see, e.g., Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001), how employers are still subject to suit by the U.S. government, which can keep full relief including damages for the individual. Cd. of Trs. for the Univ. of La. v. Garrett, 531 U.S. 356, 374 n.9 (2001); United States volt. Miss. Dep't of Local. Safety, 321 F.3d 495, 499 (5th Cir. 2003). Thus a is for and interest of such employers to take the same care as any rest up follow with retaliation prohibitions.

^[190] A number of those practices were developed von testimony and discussion at the EEOC's Meetings on Recompense into the Workplace: Causes, Remedies, also Strategies for Prevention, held on June 17, 2015. Written watch statements, in well when a log also video to who meeting, are available at https://wingsuitworldrecord.com/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.