Recently, in Carr v. New York City Transit Authority, 76 F.4th 172 (2d Cir. 2023), the United States Court of Appeals for the Second Circuit revisited and clarified the appropriate legal standard for analyzing retaliation claims under Title VII of Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981.
The Case Background:
The Carr case arose when Plaintiff Jennifer Carr, an African-American female of Caribbean descent, was allegedly passed over twice for a promotion in favor of younger, non-black employees. Carr then sued the New York City Transit Authority (“NYCTA”), asserting claims under Title VII for discrimination and retaliation.
Carr, born in 1955, worked for the NYCTA from 2000 to 2022. During the relevant period, Carr worked as a director in the NYCTA’s Capital Programs Department. In 2013 and 2014, Carr applied for two senior director positions, but after the application processes, the positions were ultimate filled by two younger, non-black employees: a white man in his early 50s who had worked at NYCTA since 1989 and a 55-year-old Asian man, who had worked at the NYCTA since 1987. Carr did not dispute that either of the men promoted were qualified, nor that that both men had worked at the NYCTA longer than Carr and had technical backgrounds that she lacked.
In 2014, Carr filed her complaint with the NYCTA’s Equal Employment Opportunity Office, followed by a Charge of Discrimination with the United States Equal Employment Opportunity Commission in 2015. After receiving a right-to-sue letter, Carr initiated her lawsuit with Southern District of New York, claiming the NYCTA discriminated against her based on her age, gender, and race. In her amended Complaint, Carr also alleged that after she complained of discrimination, she experienced retaliatory hostile work environment. More specifically, Carr asserts that she received disrespectful and hostile work emails, increased job responsibilities, threats to cancel her vacation if she did not complete her projects, and declined work performance evaluations that prevented her from receiving a wage increase.
The federal District Court granted summary judgment to the NYCTA on all of Carr’s claims, and the Second Circuit recently affirmed. In its opinion, the Second Circuit clarified the legal standard for retaliation claims under Title VII, the ADEA, and 42 U.S.C. § 1981. of the retaliation claim. The Court pointed out, although courts typically use the familiar McDonnell-Douglas burden-shifting framework for assessing both the discrimination and retaliation claims, the framework for analyzing anti-retaliation clause is distinct and broader in scope.
Specifically, following the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53 (2006), the court in Carr observed that in the retaliation context, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Supreme Court emphasized that to be “materially adverse,” an action must cause more than “trivial harms” because “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”
Two Major Differences of the Harm Element between Discrimination and Retaliation Claims:
Although discrimination claims and retaliation claims under federal law share many similarities, there are important nuanced distinctions the employers and attorneys should bear in mind. First, antiretaliation claims are not limited to “workplace-related or employment-related retaliatory acts and harm,” but can extend to an employer’s actions outside the workplace. This means that an employer’s actions outside of the workplace, such as pursuing civil actions or making public statements, could arguably give rise to a retaliation if the other elements of such a claim are present.
Second, as described by the Second Circuit in Carr, the definition of “adverse action” in the antiretaliation context is broader than in the antidiscrimination context. For retaliation claims, whether under Title VII, the ADEA, or 42 U.S.C. § 1981, establishing an adverse employment action does not require the plaintiff to show an “alteration of the terms and conditions of employment,” as required in antidiscrimination context. Rather, a plaintiff bringing a retaliation claim needs only show that the alleged retaliatory actions, taken either singularly or in the aggregate, were “materially adverse,” meaning that the actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” A claim of “retaliatory hostile work environment” must be treated identically to a claim that an employer took multiple retaliatory actions that were, in the aggregate, “materially adverse.”
The Case Result:
Despite the lower threshold of the harm element under retaliation claim, the Court nevertheless conclude that Carr failed to make out a prima facie case because the allegedly retaliatory actions were not materially adverse. Nonetheless, the court’s analysis in Carr serves as a cautionary reminder to employers that in other circumstances, a retaliation claim might survive even where a discrimination claim fails.
StraightforWARD Legal Advice:
Under the clarified standard, employers should take all reasonable measures to ensure that their employment actions, including those that go beyond the standard ones affecting the terms and conditions of employment, are being taken for legitimate, non-discriminatory reasons—and that their actions would not be construed as “materially adverse” in the sense of discouraging employees from reporting discrimination in the workplace. Employers should also keep in mind that applicable state and local laws may also apply, which frequently provide protections even broader than those provided by federal law.
Ward Law’s employment lawyers are always available to assist employers in defending their employment discrimination and retaliation cases. Ward Law also provides an experienced legal team to assist employers in amending business policies and procedures to limit the possibility of a retaliation claim after an employee complains of discrimination. If you have any questions, please contact Ross G. Currie at (215) 647-6604 or email@example.com.