Enforcement Guidance on Retaliation and Related Issues

^[1] Supreme Court decisions handed down after issuance of the EEOC's 1998 Compliance Manual that concern retaliation under EEOC-enforced laws include: University of Texas Southwestern Medical Center v. 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 Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); and Clark County School District v. Breeden, 532 U.S. 268 (2001).

^[2] Beginning in fiscal year (FY) 2009, charges of retaliation surpassed race discrimination as the most frequently alleged basis of discrimination. In FY 2015, retaliation claims were included in 44.5% of all charges received by the EEOC, and 35.7% of the Title VII charges received. See Charge Statistics, FY 1997 Through FY 2015, Equal Emp't Opportunity Comm'n, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 (last visited Aug. 28, 2024).

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

^[4] For example, complaining or threatening to complain about alleged discrimination against oneself or others may constitute protected activity. See infra § II-A.2.e. (Examples of Opposition). In addition, the doctrine of anticipatory retaliation (also called preemptive retaliation) prohibits an employer from threatening adverse action against an employee who has not yet engaged in protected activity for the purpose of discouraging him or her from doing so. See, e.g., Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002) (holding that threatening to fire plaintiff 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 individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact."). Note: issues related to waivers and releases that might be retaliatory are not addressed in this guidance.

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

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any 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 be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a 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 against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures.

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

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

The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the 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 employment.

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

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

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. The remedies and procedures otherwise provided for under this section shall be available to aggrieved individuals with respect to violations of this subsection.

^[11] The terms "employer" and "employee" are used throughout this document to refer to all those covered under the EEO laws. The EEOC Compliance Manual Section 2: Threshold Issues (2000), https:www.eeoc.gov/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 characteristics, and whether a worker is considered an "employee" for purposes of the EEO laws regardless of whether called an "independent contractor" or other name. Federal employers are included as covered entities prohibited from engaging in retaliation under each of the employment discrimination statutes. See Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of action in the federal sector for retaliation under the ADEA and describing § 633 of the ADEA as a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices").

^[12] Where it appears that an allegation of retaliation raised in an EEOC charge may be solely subject to the jurisdiction of another federal agency or a state or local government, rather than EEOC, the charging party should be referred promptly to the appropriate agency. For example, claims of retaliation for union activity should be referred to the National Labor Relations Board. Similarly, claims of retaliation for raising violations of federal wage and hour laws, such as reprisal for raising timekeeping violations, or withholding of overtime pay, should be referred to 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 Cir. 1999) ("[A]n EEOC complaint creates no right on the part of an employee to miss 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 v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (upholding dismissal of employee for past conduct and for an "abusive attempt" to have a witness change her story). However, the Commission disagrees with the notion that this principle should be extended to allow an employer to retaliate against an employee for positions taken or manner of advocacy in an adversarial EEO proceeding. See, e.g.,Benes v. A.B. Data, Ltd., 724 F.3d 752, 754 (7th Cir. 2013).

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

^[16] In the Commission's view, playing any role in an internal investigation should be deemed to constitute protected participation. Otherwise, those providing information that supports the employer rather than the complainant could be left unprotected from retaliation.

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

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

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

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

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

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

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

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

^[25] See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the participation clause includes participation in 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 not cover internal investigations before the filing of a charge with the EEOC, but not addressing Supreme Court precedents); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (declining to decide whether the participation clause covers all internal investigations, and ruling that "at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation, the employee's participation is participation 'in any manner' in the EEOC investigation"); see also EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover on the ground that no EEOC charge had been filed before the alleged retaliatory act, the court concluded that plaintiff's internal sexual harassment complaint could not be protected under the participation clause).

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

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

^[28] Merritt, 120 F.3d at 1186 (reasoning that "[t]he word 'testified' is not preceded or followed by any restrictive language that limits its reach" and it is followed by the phrase "in any manner," indicating its intended broad sweep); United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997) (reasoning that the statutory term "'any' is a term of great breadth").

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

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

^[31] Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009); see also Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) ("[P]rotected conduct includes not only the filing of 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 was actionable under the FLSA, as incorporated into the Equal Pay Act, for complaint to supervisor about male counterparts being paid $1/hour more); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).

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

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

^[34] Id. at 279 n.3 ("[E]mployees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by 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 under his supervision in filing and pursuing an internal sexual harassment complaint, even though he did not "utter words" when he and the subordinate met with a human resources official, since his action in accompanying her "effectively and purposefully communicated his opposition to" the alleged harassment).

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

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

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

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

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

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

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

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

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

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

^[45] See, e.g., Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981) (holding that picketing in opposition to employer's alleged unlawful 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 discrimination cannot be bargained away in union contract).

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

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

^[48] See supra notes 40-45.

^[49] EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (finding that plaintiff had engaged in protected activity when she informed her employer she intended to file a sex discrimination charge, even though she later changed her mind), cert. denied, 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 Law Enf't, 868 F.2d 397, 399, 401 (11th Cir. 1989) (describing "the sheer number and frequency" of plaintiff's "mostly spurious" discrimination complaints as "overwhelming," and holding that the manner of opposition was not reasonable).

^[52] Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1392 (8th Cir. 1988) (noting that district court characterized employee's attempts to persuade coworker to 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 evidence showed plaintiff was terminated for spending an inordinate amount of time in "employee advocacy" activities and failing to complete other aspects of her personnel job).

^[54] Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) ("[A] plaintiff [in an opposition case] does not need to prove that the employment practice at issue was in fact unlawful under Title VII . . . [A plaintiff] must only show that she had a "reasonable belief" that the employment practice she protested was prohibited under Title VII."); see also Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) ("Limiting retaliation protections to those individuals whose discrimination claims are meritorious would 'undermine[] Title VII's central purpose, the elimination of employment discrimination by informal means; destroy[] one of the chief means of achieving that purpose, the frank and non-disruptive exchange of ideas between employers and employees; and serve[] no redeeming statutory or policy purposes of its own.'"). For this reason, if an employer takes a materially adverse action against an employee because it concludes that the employee has acted in bad faith in raising EEO allegations, it is not certain to prevail on a retaliation claim, since a jury may conclude that the claim was in fact made in good faith even if the employer subjectively thought otherwise. Cf. Sanders v. 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 making false or bad accusations, he does so at his peril, and takes the risk that a jury will later disagree with his characterization."); see also supra note 18.

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

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

^[57] See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 194-95 (3d Cir. 2015) (ruling that plaintiff's complaint to school principal about his off-hand comment that many of the teachers looked old enough to be grandparents was not protected activity, but that it was protected activity when she sent a letter to human resources complaining about age discrimination in which she noted the "grandparent" comment, increased scrutiny, being referred to as "old school" by colleagues, lack of assistance in disciplining her students, negative evaluations, the principal questioning students about the plaintiff's pedagogy, and his failure to inform her about her teaching status until after the new school year started despite multiple requests for information); Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Cir. 2010) ("[T]he challenged conduct [in Breeden] amounted to a single, mild incident or offhand comment, such that no reasonable person could have believed that this conduct violated Title VII."); Byers v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (ruling that employee's complaint of reverse discrimination was objectively unreasonable absent any supporting evidence).

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

^[59] 524 U.S. at 764 (emphasis added). Such complaints play a critical role in EEO compliance and enforcement, because typically "if employers and employees discharge their respective duties of reasonable care, unlawful harassment will be prevented and there will be no reason to consider questions of liability." EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

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

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

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

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

^[64] This view, which extends beyond the holding in Boyer-Liberto, was advocated by the Commission in its amicus brief filed in that case. See, e.g., EEOC's Brief as Amicus Curiae Supporting Appellant's Petition for Rehearing en banc, Boyer-Liberto 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 environment if repeated often enough"), https://www.eeoc.gov/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission has long disagreed with cases that find no protection from retaliation for employees complaining of harassment because it is not yet "severe or pervasive" or could not be reasonably viewed as such.

^[65] For example, asserting in a retaliation case that an employee's complaints related to sexual orientation discrimination should be deemed protected activity in light of the EEOC's interpretation of Title VII, the Commission explained: "To hold otherwise would require discrimination victims or witnesses - usually 'lay' persons - to master the subtleties of sex-discrimination law before securing safe harbor in the broad remedial protections of Title VII's anti-retaliation rule." Brief of EEOC as Amicus Curiae in Support of Panel Rehearing, Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014) (No. 12-1723), https://www.eeoc.gov/litigation/briefs/muhammad-v-caterpillar-inc.

^[66] Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10 (EEOC July 15, 2015), https://www.eeoc.gov/decisions/0120133080.pdf; see also Brief of EEOC as Amicus Curiae, Evans v. Ga. Reg'l Hosp., No. 15-15234 (11th Cir. filed Jan. 11, 2016), https://www.eeoc.gov/litigation/briefs/evans-v-georgia-regional-hospital. A number of courts have since agreed with the EEOC's position that Title VII's prohibition on sex discrimination encompasses a prohibition on sexual orientation discrimination. See e.g., Isaacs v. Felder 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); cf. Roberts v. UPS, 115 F. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing state law); but see Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 WL 4039703, at *6-14 (7th Cir. July 28, 2016). Yet protection against retaliation for opposing sexual orientation discrimination is not limited to those jurisdictions that have agreed with the EEOC. An individual is protected from retaliation for opposing practices that discriminate based on sexual orientation even if a court has not adopted the EEOC's position on sexual orientation discrimination. See, e.g., Birkholz v. City of New York, No. 10-CV-4719 (NGG)(SMG), 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) ("If opposition to sexual-orientation-based discrimination was not protected activity, employees subjected to gender stereotyping would have to base their decision to oppose or not oppose unlawful conduct on a brittle legal distinction [between sexual orientation and sex discrimination], a situation that might produce a chilling effect on gender stereotyping claims."). Similarly, if an employee requested that an employer provide her with light duty due to her pregnancy, as provided to other employees for other reasons, the request would constitute protected activity based on a reasonable good faith belief, even if the legal application of the rules is new or the facts of her employer's workplace may not be fully known to her. See generally EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2015), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

^[67] See Brief for the Secretary of Labor and the Equal Employment Opportunity Commission as Amici Curiae in Support of Plaintiff-Appellant, Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292) (rejecting the so-called "manager rule" adopted by some courts to require that managers must "step outside" a management role and assume a position adverse to the employer in order to engage in protected activity), https://www.eeoc.gov/litigation/briefs/rosenfield-v-globaltranz-enterprises; DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) (holding, in a case of opposition by an Employee Assistance Program counselor on behalf of an employee client, that "the 'manager rule' has no place in Title VII jurisprudence," and stating: "Nothing in the language of Title VII indicates that the statutory protection accorded an employee's oppositional conduct turns on the employee's job description or that Congress intended to excise 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 Cir. 2001)(same); Rangel v. Omni Hotel Mgmt. Corp, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

^[68] Even where courts have applied a different rule for human resources personnel or others whose job duties involve processing internal EEO complaints, a number of courts have concluded that such employees are nonetheless protected when they "step[] outside" that role. See, e.g.,Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (holding that an internal EEO director does not engage in protected opposition by fulfilling a job duty to report or investigate other employees' discrimination complaints, but that actively 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 that "an employer cannot be permitted to avoid liability for retaliation simply by crafting equal employment policies that require its employees to report unlawful employment practices," and holding that even assuming arguendo that a "step outside" rule applies under Title VII, plaintiff stepped outside his managerial duties when he supported a subordinate in lodging and pursuing a sexual harassment complaint and was therefore protected).

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

^[70] As discussed in § II-A.1., because participation and opposition have some overlap, the Commission and the Solicitor General have long taken the view that raising complaints, serving as a voluntary or involuntary witness, or otherwise participating in an employer's internal complaint or investigation process can be seen as participation. If they are characterized as opposition, 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 an employer's internal investigation of another worker's harassment complaint was protected activity because opposition extends beyond "active, consistent" conduct "instigat[ed]" or "initiat[ed]" by the employee). In Crawford, the court explained "nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her 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 to keep quiet about Title VII offenses against themselves or against others," id. at 279. See also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (holding that Title VII's anti-retaliation provision protects a person who volunteers to testify on behalf of a coworker, even if the person is never actually called to testify). Cf. EEOC v. Creative Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 276742, at *8 (D. Ariz. Jan. 15, 2010) (ruling that Title VII's retaliation provision protects a worker whether "poised to support coworker's discrimination claim, dispute the claim, or merely present percipient observations").

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

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

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

^[75] EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (holding that demanding a supervisor stop harassment 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 reasonable jury could conclude plaintiff engaged in protected opposition when she told her supervisor to stop harassing her); EEOC v. IPS Indus., Inc., 899 F. Supp. 2d 507, 521 (N.D. Miss. 2012) (ruling that employee's informally confronting her supervisor about his insinuations that the employee was involved in a relationship with a coworker, telling the supervisor not to touch her again after he reached around behind her, and informing him that she would only return to work if he stopped touching her, were not "mere rejections" of inappropriate sexual conduct, but rather constituted protected opposition); Ross v. Baldwin Cty. Bd. of Educ., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) ("It would be anomalous, and would undermine the fundamental purpose of the statute, if Title's VII's protections from retaliation were triggered only if the employee complained to some particular official designated by the employer."). These protections could also extend to non-verbal resistance to an unwanted sexual advance by a supervisor, such as walking away or removing the supervisor's hand from the employee's body.

^[76] McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling that employee stated cause of action for retaliation when he alleged that his 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 Lex K. Larson, Employment Discrimination § 154.10, at p. 154-105 & n. 25 (2d ed. 2014) ("In addition to the activities specifically protected by the statute, courts have found that requesting reasonable accommodation is a protected activity.").

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

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

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

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

^[82] See Jackson v. Saint Joseph 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 manner of opposition was reasonable on facts of the case); EEOC v. Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding that employee's discreet request to one of the company's clients with whom he worked, asking for written statement describing work duties in support of his pending EEO claim, was protected activity).

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

^[84] E.O. 11246, as amended, applies to companies with federal contracts 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 on OFCCP's pay transparency web page at http://www.dol.gov/ofccp/PayTransparency.html (last visited Aug. 18, 2016). Contractors and individuals with questions about the OFCCP pay transparency protections or how to file a complaint may contact OFCCP by calling 1-800-397-6251, sending an e-mail to OFCCP-Public@dol.gov, or contacting the nearest OFCCP office. More information is available on the OFCCP web site at http://www.dol.gov/ofccp/.

^[87] Under the OFCCP regulations, the two circumstances in which disclosures can be made are: (1) the disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, or in accordance with the contractor's legal duty to furnish information; or (2) the disclosure occurs during discussions with management officials, or while using the contractor's internal complaint process, about possible disparities involving another employee's compensation, or the disclosure was of compensation information received through means other than access granted through their essential job functions.

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

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

^[90] Kelley v. City of Albuquerque, 542 F.3d 802, 820-21 (10th Cir. 2008) (concluding that attorney who represented city in EEO mediation was protected against retaliation when his opposing counsel, who subsequently was elected mayor, terminated his employment); Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (holding that white employees who complain about a racially hostile work environment against African-Americans are protected against retaliation for their complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (holding that Title VII protects plaintiff against retaliation even where plaintiff did not himself engage in protected activity, but rather his coworker engaged in protected activity on his behalf).

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

^[92] See, e.g., EEOC v. 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 to file EEOC charge is protected); cf. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federal employee's contact with agency EEO Counselor is participation under Title VII).

^[93] For example, in McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001), a firefighter's initiation of an investigation into a union president's sexual assault of a union secretary was held to be "protected activity." The court rejected a lower court ruling that "protected activity" only includes opposition to unlawful employment practices by the same covered entity that engaged in the alleged retaliatory acts. In rejecting this argument, the court adopted the EEOC's position that "[a]n individual is protected against retaliation for participation in employment discrimination proceedings involving a different entity." Id. This is especially true, the court held, where "the two employers have a relationship that may give one of them an incentive to retaliate for an employee's protected activities against the other." Id. at 284-85; see also Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant's frequent reference to plaintiff's sex discrimination action against prior employer warranted 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 a former employer for retaliation when it provided a negative reference to a prospective employer for whom plaintiff subsequently applied to work, because Title VII's definition of employee lacks any "temporal qualifier").

^[95] See, e.g., infra Example 19; Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence could support a finding that plaintiff's job offer was rescinded after his prospective employer was told by his former employer that plaintiff, who had been listed as a favorable witness in a 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 an unjustified negative job reference was retaliatory and need not prove that she would have received the job absent the reference); see also L.B. Foster Co., 123 F.3d at 753-54; Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Serrano 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 informing a prospective employer about an employee's lawsuit constitutes an adverse action under Title VII, because "surely" the plaintiff's former supervisor "knew or should have known" that, by revealing the fact that the plaintiff had sued her former employer, "he could severely hurt her chances of finding employment").

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

^[97] Anderson v. Phillips Petrol., 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 employer took adverse action because it erroneously believed plaintiff had engaged in protected activity); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding that FLSA's anti-retaliation provision prohibits retaliation 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. v. White, 548 U.S. 53, 67 (2006) ("Title VII's substantive [discrimination] provision and its antiretaliation provision are not coterminous" because the "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 also extends beyond the scope of "adverse actions" involving federal employees that are subject to the jurisdiction of the Merit Systems Protection Board.

^[101] Id. at 69.

^[102] See, e.g., Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that a high school teacher stated a claim for retaliation based on the combination of "his assignment of notoriously absent students, his temporary paycheck reduction, and the District's failure to notify him of a curriculum change"); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App'x 587, 599 (6th Cir. 2009) (holding that although some of the incidents alone may not rise to the level of an adverse action, "the incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge").

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

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

^[105] Id. (citation omitted).

^[106] Id. at 71-73.

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

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

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

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

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

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

^[113] See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding that the "denial of a deserved rise in performance rating" can be actionable 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" was not materially adverse because it was delivered orally, with no written record placed in the plaintiff's personnel file, and the evaluation was superseded by the plaintiff's year-end review); see also Halfacre v. Home Depot, U.S.A., Inc., 221 F. App'x 424, 432-33 (6th Cir. 2007); Parikh v. N.Y.C. Transit 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 Chi., 588 F.3d 406, 409-10 (7th Cir. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff's eligibility to be promoted from sergeant to lieutenant on the police force constituted materially adverse action); Billings v. Town of Grafton, 515 F.3d 39, 53 (1st Cir. 2008) (ruling that although the plaintiff's own displeasure, standing alone, would be insufficient to render an action materially adverse, there was sufficient evidence for a jury to find that in retaliation for complaining about sexual harassment she had been subject to a materially adverse action when she was transferred to an objectively less prestigious position that reported to a lower-ranked supervisor, provided much less contact with the Board of Selectmen, the Town, and members 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 was materially adverse to move plaintiff's office to a different building in the same complex, where the move isolated her from her colleagues, made it difficult for her to complete her job duties, diminished her standing as a senior staff member, contributed to a loss of responsibilities, cut off her access to administrative support services, forced her to travel between buildings in dangerously wet or icy walking conditions, and made it difficult for her to manage her diabetes).

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

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

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

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

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

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

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

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

^[124] The Commission has repeatedly filed lawsuits based on such facts. EEOC v. Queen's Med. Ctr., Civil Action No. 01-CV-00389 (D. Haw. consent decree entered July 2002) (settlement of retaliation case alleging that shortly after employee lodged an internal complaint, employer contacted the Immigration and Naturalization Service to retract its support for his permanent visa application, resulting in the INS initiating a hearing into his immigration status and therefore requiring him to hire a lawyer to defend his 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 decree entered Jan. 11, 2000) (employer who allegedly reported workers to INS after they engaged in protected activity under NLRA and Title VII settled discrimination and retaliation claims for $72,000; INS deferred deportation action for two years to allow the workers time to be witnesses in case); see also Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Title VII case law, the court held that a factfinder could conclude an employer engaged in retaliation under the FLSA where it knew about plaintiff's immigration status but waited until after he engaged in protected activity to "hold it . . . over his head"); cf. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1050-51 (D. Minn. 2007) (denying summary judgment for the employer, the court ruled that the timing of a human resources director asking plaintiff to submit valid I-9 documentation two days after reporting sexual harassment could be found by a jury to support an inference of retaliatory motive for her subsequent termination).

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

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

^[127] Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (ruling that 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. Cir. 1991) (holding that canceling a symposium in honor of retired employee who filed ADEA charge was retaliatory).

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

^[129] Fanning v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling that a brief delay in payment of $300 quarterly health benefit refund representing less than 2% of plaintiff's monthly income was not materially adverse). By contrast, the Commission has challenged retaliatory withholding of funds due to an employee. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Action No. 2:13-cv-01079 (E.D. Wis. consent decree entered July 2014) (settlement of retaliation claim based on employer's alleged refusal to provide severance payments and benefits and payments previously promised because it learned employee had previously filed an EEOC charge).

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

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

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

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

^[134] EEOC, Compliance Manual Section 2: Threshold Issues § III-A.4 (2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues ("Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status."). The Commission has filed both individual and systemic lawsuits based on such facts. See, e.g., EEOC v. DeCoster Farms, No. 3:02-cv-03077-MWB (N.D. Iowa consent decree entered Sept. 2002) (EEOC alleged that supervisors sexually harassed and raped female workers, especially those of Mexican and other Hispanic national origin - some of whom were undocumented at the time - and threatened to deport and terminate any of the victims who cooperated with EEOC; consent decree provided $1.525 million; undocumented victims were granted deferred status and visas); EEOC v. Quality 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 employees to the INS and subsequently contacted INS in an attempt to secure arrest and/or deportation; consent decree provided $3.5 million to victims); supra note 124 (collecting additional cases).

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

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

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

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

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

^[140] McGhee v. Healthcare Servs. Grp., Inc., No. 5:10cv279/RS-EMT, 2011 WL 818662, at *2-3 (N.D. Fla. Mar. 2, 2011) (ruling that plaintiff could proceed with a Title VII retaliation claim based on allegations that after his wife filed an EEOC charge against her employer, plaintiff was 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. Aug, 11, 2014).

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

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

^[145] Staub v. Proctor Hosp., 562 U.S. 411, 418-22 (2011) (applying "cat's paw" theory to a retaliation claim under the Uniformed Services Employment and Reemployment Rights Act, which is "very similar to Title VII"; holding that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable"); Zamora v. City of Hous., 798 F.3d 326, 333-34 (5th Cir. 2015) (applying Staub, the court held there was sufficient evidence to support a jury verdict finding retaliatory suspension); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the court upheld a jury verdict in favor of white workers who were laid off by management after complaining about their direct supervisors' use of racial epithets to disparage minority coworkers, where the supervisors recommended them for layoff shortly after workers' original complaints were found to have merit).

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

^[147] Preponderance of the evidence (more likely than not) is the evidentiary burden under both causation standards. Id. at 2534; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 n.4 (2009) (emphasizing that under the "but-for" 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 does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of a retaliatory motive."). Circuit courts analyzing "but-for" causation under other EEOC-enforced laws also have explained that the standard does not require "sole" causation. See, e.g., Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining in Title VII case where the plaintiff chose to pursue only but-for causation, not mixed motive, that "nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action"); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 316-17 (6th Cir. 2012) (ruling that "but-for" causation required by language in Title I of the ADA does not mean "sole cause"); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant's challenge to Title VII jury instructions because "a 'but for' cause is simply not synonymous with 'sole' cause"); Miller v. Am. Airlines, Inc., 525 F.3d 520, 523 (7th Cir. 2008) ("The plaintiffs do not have to show, however, that their age was the sole motivation for the employer's decision; it is sufficient if age was a "determining factor" or a "but for" element in the decision.").

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

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

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

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

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

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

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

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

^[157] Compare Hoppe v. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding that employer had legitimate, non-retaliatory reason for firing aviation ethics teacher because she had never worked in aviation field, lacked formal aviation training, and had no relevant degrees, regardless of her past experience teaching philosophy and positive student reviews), with Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that employer's assertion that applicant for promotion was "not sufficiently suited" was vague and, if left unexplained, might not even qualify as a nondiscriminatory reason).

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

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

^[160] Some courts have used the concept of a “convincing mosaic” to describe the combination of different pieces of evidence to show retaliatory intent.  This is not a legal requirement or a causation standard, but rather simply a description of combining different pieces of evidence to satisfy the applicable causation standard.  Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Aug. 19, 2016); Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012) (holding that “[w]hen all of these pieces are viewed together and in [plaintiff’s] favor, they form a mosaic that is enough to support the jury’s finding of retaliation,” even though challenged termination occurred five years after he filed his ADEA lawsuit); see also Nita H. v. Dep’t of Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 (EEOC July 16, 2014) (adopting and applying the “convincing mosaic” concept, the Commission rejected the employer’s contention that this requires plaintiff to make all the evidence fit in an interlocking pattern 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 jury could infer causation from evidence that harassment by supervisors intensified shortly after plaintiff filed an internal 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 for plaintiff's discharge was pretextual where defendant launched investigation into allegedly improper 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 notwithstanding 11-month interim because supervisor stated his intention to "get back at" those who had supported the discrimination allegations); Kachmar v. SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling that district court erroneously dismissed plaintiff's retaliation claim because termination occurred nearly one year after her protected activity; when there may be reasons why adverse action was not taken immediately, absence of immediacy does not 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, a doctor, was discharged in retaliation for ADEA lawsuit filed 5 years earlier, where the evidence showed plaintiff was fired for common conduct for which others were not disciplined, he was not given an opportunity to defend himself, and had been threatened years earlier by one of the decisionmakers that if he filed the suit he would never work at the hospital or in Puerto Rico again); Rao v. Tex. Parks & Wildlife Dep't, No. 4:13-cv-0726, 2014 WL 1846102, at *3 (S.D. Tex. May 8, 2014) (holding that denial of promotion could be shown to be in retaliation for complaint filed three years earlier, where decisionmaker said to plaintiff "you didn't do anything wrong, but you filed that complaint").

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

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

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

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

^[169] See supra notes 113 and 116.

^[170] Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (ruling that inconsistent explanations by employer presented issue for jury); Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011) (ruling that pretext could be shown because between the EEOC investigation and the litigation, the employer shifted its explanation for plaintiff's termination from reduction in force to 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 actions were designed simply to give credential review committee a legitimate assessment of complaints against plaintiff, the evidence showed he overstated his objections and failed to disclose that he had been the subject of several prior complaints by plaintiff, which could lead the jury to conclude that his motives were attributable to discriminatory and/or retaliatory animus); Spengler, 615 F.3d at 495 (ruling that pretext could be shown because employer's explanation that seasonal employees are discharged after 12 months was inconsistent with testimony that the policy was only applied in the event of a production slowdown, which had not occurred); Franklin v. Local 2 of the Sheet Metal Workers Int'l Ass'n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling that defendant's reading aloud at union meetings of legal bills identifying employees who had filed discrimination charges against the union may have been retaliatory, since degree of detail disclosed was not necessary given proffered non-retaliatory explanation that it was done in order to obtain member approval for expenditures).

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

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

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

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

^[176] See Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding that in comparison to the retaliation provision, the interference provision protects a broader class of persons against less clearly defined wrongs; demands that plaintiff stop taking her medications and perform duties contrary to her medical restrictions or be forcibly retired constituted actionable interference).

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

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

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

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

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

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

^[183] Id. (ruling that the employer's retaliation would have a chilling effect on other employees' willingness to exercise their rights or testify for plaintiff, and therefore would cause irreparable harm); cf. EEOC v. Peters' Bakery, 13-CV-04507-BLF (N.D. Cal. preliminary injunction issued July 2015) (ruling that harassment about the pending claim, combined with the likelihood of success on the merits, may support entry of a preliminary injunction prohibiting an employer from terminating an employee during the pendency of a federal EEO lawsuit, because "permitting [the individual] to be terminated under such circumstances may well have a chilling effect on other employees who might wish to file charges with the EEOC, and thus could interfere with the EEOC's mission").

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

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

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

^[187] Compare Edwards v. Brookhaven Sci. Assocs., 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (ruling that compensatory and punitive damages for retaliation are available under the ADA), and Lovejoy-Wilson v. NOCO Motor Fuels, Inc., 242 F. Supp. 2d 236, 240-41 (W.D.N.Y. 2003) (same), with Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264-70 (9th Cir. 2009) (ruling that compensatory and punitive damages are 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, without analyzing the availability of compensatory damages, have affirmed awards to plaintiffs who have prevailed in retaliation claims under the 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] See Brief of the EEOC as Amicus Curiae in Support of Plaintiff-Appellee Cross-Appellant, Mascarella v. CPlace Univ. SNF, No. 15-30970 (5th Cir. filed June 10, 2016), https://www.eeoc.gov/litigation/briefs/mascarella-v-cplace-university-0.

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

^[190] A number of these practices were developed from testimony and discussion at the EEOC's Meeting on Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention, held on June 17, 2015. Written witness statements, as well as a transcript and video of the meeting, are available at https://www.eeoc.gov/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.