Retaliation: What Is Temporal Proximity?

It’s that wonderful time of the year when we remind everyone about the concept of retaliation in discrimination law.

It’s pretty important: in 2016, then-EEOC Chair Jenny R. Yang said that “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.”  That half of all charges of discrimination involve retaliation is a staggering statistic — what does it say about employers’ understanding of the various anti-retaliation provisions of the anti-discrimination statutes that this number is so large?

Employers should realize that it’s far easier to prove retaliation than the underlying discrimination — and far easier to create a retaliation situation if you don’t know how to deal with a charge or claim or complaint of discrimination.

Far easier!

So What Is Retaliation?

Title VII contains an anti-retaliation provision, which, as my partner Amy Epstein Gluck once wrote (I have the quote but cannot find the post – sorry):

“makes it unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.  Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.  The EEOC considers ‘opposition’ to be complaining to anyone about alleged discrimination suffered by oneself OR others!”

Other such statutes also contain anti-retaliation provisions: the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act, the Equal Pay Act (“EPA”), and the Genetic Information Nondiscrimination Act (“GINA”).

The Elements Of Retaliation

To make out a claim for retaliation, it must be shown that (1) plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer, and (3) there is some causal connection between the two.

We’ve spent a lot of newsprint (newsprint?) on the first two elements – but what about the third element, “some causal connection” between the statutorily protected activity and adverse employment action?

What constitutes “causal connection”?

Well, to be plain, it is something from which an inference can be drawn that element two followed from — was causally connected to –  element one.  That is, that an adverse action followed a statutorily protected activity.

Like what?

Well, “temporal proximity” can provide such an inference.

Temporal Proximity? 

A short new decision from the NY state appeals court in Manhattan discusses temporal proximity under the NY State and City laws – but is applicable to the relevant federal laws.  The court denied summary judgment against the employer holding that:

“The temporal proximity between plaintiff’s complaints to his employer that he was subjected to racial stereotyping and discrimination and the termination of his employment in close succession to his last complaint is sufficient to raise an inference of a causal connection between plaintiff’s protected activity and the disadvantaging employment action taken against him (see Harrington v City of New York, 157 AD3d 582, 585-586 [1st Dept 2018]; Krebaum v Capital One, N.A., 138 AD3d 528, 528-529 [1st Dept 2016]; Administrative Code of City of NY § 8-107[7]).

Viewed in the light most favorable to plaintiff, the record provides additional support for an inference of retaliation in the fact that defendants never investigated, or even acknowledged, plaintiff’s final complaint and the fact that plaintiff was terminated for conduct comparable to his supervisee’s conduct, for which the supervisee only received a mild reprimand.”

Nice and simple, no?  Element two followed element one “in close succession,” that is closely in time.   Hence the phrase “temporal proximity.”



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]