Different Scopes of Actionable Conduct for Title VII Discrimination and Retaliation Claims
Title VII protects employees from discriminatory and retaliatory conduct. Both discrimination and retaliation claims require “adverse action” as an essential element of a prima facie claim. However, the scope of conduct that constitutes “adverse action” for retaliation claims under Title VII is broader than it is for discrimination claims.
In the discrimination context, “adverse action” includes actions that disadvantage an employee with respect to the terms and conditions of employment. This typically includes the following types of actions:
Hiring;
Firing;
Compensation;
Duties;
Promotion/demotion; and
Suspension without pay.
In the retaliation context, “adverse action” includes all materially adverse conduct which, in the applicable circumstances, could deter a reasonable employee from engaging in protected activity. Courts have found that conduct that does not necessarily rise to the level of impacting the terms and conditions of employment for an actionable discrimination claim could still deter a reasonable employee from engaging in protected activity and could, thus, give rise to an actionable retaliation claim. In addition to the above conduct that is actionable for a discrimination claim, the following additional circumstances could—depending on the specific circumstances and context of the case—give rise to a retaliation claim:
Negative performance reviews;
Post-employment reprisals;
Suspensions with pay; and
Non-trivial harassment/hostile work environment.
Notably, although the scope of actionable conduct for a retaliation claim is broader than the scope of actionable conduct for a discrimination claim, employees bringing retaliation claims must use the heightened but-for causation standard, whereas employees bringing discrimination claims may use either (i) the but-for causation standard; or (ii) the lower “mixed motivation” standard (when the employer asserts that it would have made the same employment decision regardless of the employee’s protected classification).
