Massachusetts Law Review

Understanding and Preventing Workplace Retaliation

Lisa Cooney
Lisa Cooney is an attorney with Laredo & Smith in Boston. She concentrates her practice in employment law and litigation.


I. Introduction

The past decade has seen a significant increase in workplace retaliation claims.1 Numerous federal and Massachusetts statutes prohibiting retaliation exist to ensure that individuals who oppose unlawful employment discrimination in the workplace, participate in employment discrimination proceedings, or otherwise assert their rights, are protected against retribution by their employer.2 The Equal Employment Opportunity Commission ("EEOC") has stated that allowing employers to take adverse action against employees who file charges of discrimination or oppose employment practices they reasonably believe to be unlawful would have a chilling effect on the willingness of employees to assert their rights.3

Statutes such as Title VII of the Civil Rights Act and Massachusetts General Laws chapter 151B permit aggrieved employees to assert retaliation claims based on either participation in legally protected activity or opposition to unlawful conduct. An example of lawful participation is filing an employment discrimination charge with the EEOC or in state or federal court. Protected opposition includes reporting alleged unlawful activity, such as sexual harassment, to one's supervisor. Retaliation can take many forms and can be perpetrated by one's managers or co-workers. For example, a supervisor has engaged in unlawful retaliation upon terminating or demoting an employee based on the employee's filing a discrimination charge with the EEOC. In some jurisdictions, retaliation can also take the form of employee harassment and ridicule by co-workers for opposing an employer's unlawful conduct.

Employees are more routinely filing discrimination charges in tandem with claims of retaliation since retaliation claims can survive even when the underlying discrimination claims have no merit.4 Moreover, the scope of who is protected by anti-retaliation provisions has expanded to include former as well as current employees. Successful retaliation plaintiffs can recover significant monetary relief, which may include punitive damages.

Highlighting the similarities and differences between federal and state law, this article provides an overview of the law of retaliation in Massachusetts and the federal courts in the First Circuit.5 It begins by outlining the federal and state statutes, which form the basis for retaliation claims and describes the respective burdens of proof. As to the plaintiff's prima facie burden, this article discusses what conduct constitutes protected activity under the participation and opposition clauses and highlights the split of authority among the federal circuits as to whether informal, internal complaints to one's employer qualifies as a protected act under the participation clause.

The article then describes in detail the adverse action requirement. Differing judicial interpretations are discussed as to whether actions that do not affect the terms and conditions of employment qualify as retaliation under the statutes. The article describes the requirement of proof of a causal connection between the protected activity and adverse action, focusing on issues surrounding temporal relationships and treatment of similarly situated employees.

The discussion then focuses on various procedural issues that often arise in retaliation cases, including standing, exhaustion of administrative remedies, the viability of retaliation claims in the absence of underlying discrimination, and the effect of asserting counterclaims against a complaining employee. The next section reviews the remedies available to plaintiffs in retaliation cases. Finally, the article highlights the potential for retaliation when employers conduct sexual harassment and other internal investigations and provides employers with practical suggestions for preventing retaliation in the workplace.

II. Sources of Law and Burdens of Proof

A. Statutory Sources of Retaliation Claims

Virtually all anti-discrimination laws contain an anti-retaliation provision. Federal statutes prohibiting retaliation include: (1) Title VII of the Civil Rights Act of 1964;6 (2) the Age Discrimination in Employment Act of 1967;7 (3) the Americans with Disabilities Act of 1990;8 (4) the Employee Retirement Income Security Act of 1974;9 (5) the Fair Labor Standards Act;10 (6) the National Labor Relations Act;11 and (7) the Family and Medical Leave Act.12 For example, section 704(a) of Title VII provides that:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . 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 title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.13

Massachusetts statutes forbidding retaliation include: (1) the Massachusetts Anti-Discrimination Statute;14 (2) the Massachusetts Worker's Compensation Law;15 (3) the Massachusetts Payment of Wages Statute;16 (4) the Massachusetts Minimum Wage/Overtime Law;17 and (5) the Massachusetts Equal Pay Act.18 The Massachusetts Anti-Discrimination Statute ("Chapter 151B"), for instance, makes it unlawful for "any person, employer, labor organizer or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five."19 Chapter 151B also prohibits intimidating or threatening an employee in retaliation for exercising her rights under the chapter.20

These laws each make it unlawful for employers to take adverse action against an employee because she has made a complaint, participated in an investigation or proceeding related to an employment discrimination complaint, or opposed unlawful conduct. Although interpretations of the various nuances of retaliation claims vary between Massachusetts and federal courts and among the federal circuits, the statutes all contain similar language and seek to achieve the same policy goal of permitting employees to enforce their rights without fear of retribution. The legal analysis surrounding retaliation claims, including the applicable burdens of proof, proceeds similarly under these Massachusetts and federal laws.21

B. Burdens of Proof

The basic elements of a retaliation claim include: (a) protected activity by the plaintiff; (b) adverse action by the employer; and (c) a causal connection between the two.22 Although certain aspects of retaliation claims differ under federal and Massachusetts law,23 the general analysis is similar. How the case proceeds also depends on whether the plaintiff can provide direct evidence of retaliation.24 Direct evidence "consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision."25 Claims for discrimination and retaliation that involve direct evidence are generally easier to prove.26 If a plaintiff introduces direct evidence, to which the employer responds with proof of legitimate reasons for the actions taken, the case proceeds under the mixed-motive analysis set forth in Price Waterhouse v. Hopkins.27 The mixed motive analysis requires that in order to avoid liability, the employer must show that it would have taken the same action against the plaintiff in the absence of the impermissible motivating factor.28 To succeed under the mixed-motive analysis, the plaintiff must provide evidence that an illegitimate criterion was a substantial factor in the employer's decision.29

When retaliation claims do not involve direct evidence, they proceed under the burden-shifting criteria in the United States Supreme Court decision McDonnell Douglas Corp. v. Green.30 The plaintiff must first establish a prima facie case of retaliation, the criteria of which differ under federal and Massachusetts law. Federal cases require that plaintiffs prove "(1) he or she engaged in a protected activity, known to the employer; (2) he or she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment actions."31 The federal burden is generally "not onerous" and requires only "the production of admissible evidence which, if uncontradicted, would justify a legal conclusion of [retaliation]."32

Massachusetts delineates the plaintiff's burden somewhat differently. In Tate v. Department of Mental Health,33 the Massachusetts Supreme Judicial Court mandated that a retaliation plaintiff must prove "that she reasonably and in good faith believed that [her employer] was engaged in wrongful discrimination, that she acted reasonably in response to her belief, and that the [employer's] desire to retaliate against her was a determinative factor in its decision to terminate her employment."34 In Tate, the plaintiff sued her employer for handicap discrimination and retaliation after she was discharged for what the employer described as "persistent resistance to the Association's authority and structure."35 The plaintiff had sent repeated memoranda and made numerous complaints to management personnel concerning her employer's administrative structure, policies and procedures.36

Noting that the plaintiff failed to produce any evidence that she was terminated for any reason other than insubordination, the court determined that the plaintiff failed to satisfy her prima facie burden of proving that she was reasonable in her belief that the employer's "desire to retaliate against her" was a determinative factor in her discharge.37 Massachusetts imposes a stricter prima facie burden on plaintiffs, regardless of whether they proceed under the participation or opposition clause. This burden requires that a plaintiff be reasonable in his or her belief that retaliation occurred and that he or she acted reasonably in response thereto.38

Under both federal and state law, once the plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises and, in order to avoid liability, the employer must present evidence of a non-discriminatory reason for the adverse action taken.39 The employer's burden similarly is not onerous and requires only competent evidence that would permit a fact-finder to conclude that there was a non-discriminatory reason for the action taken.40 For example, in Ianetta v. Putnam Investments, Inc.,41 the United States District Court for the District of Massachusetts held that the plaintiff's below-par performance, which included making careless errors and entering the wrong confirmation date for a series of trades, constituted a legitimate reason for his termination.42

When the employer succeeds in demonstrating a legitimate reason for its actions the burden shifts back to the employee, whose subsequent burden of proof differs depending on whether the case proceeds in federal or state court. Federal law requires proof that the reason for the adverse action was a pretext and that the action taken was the result of retaliatory animus or motive.43 By contrast, Massachusetts courts, in discrimination and retaliation cases, have traditionally required proof only that the employer's articulated reasons were pretextual, but not that the real reason resulted from discriminatory animus.44 The Massachusetts Supreme Judicial Court, however, in Lipchitz v. Raytheon Co.,45 departed from use of the terms "pretext" and "pretext-plus" and the overall burden-shifting scheme in analyzing and instructing juries in discrimination cases.46 The Lipchitz court stated that judges should abandon using the terms "pretext" and "pretext for discrimination" and cease framing the issues in terms of shifting burdens when instructing juries.47 The court further mandated that judges craft jury instructions that focus on the ultimate issues of harm, discriminatory animus, and causation and require employees to prove that the employer acted with a discriminatory intent, motive or state of mind.48

For the first time, in this important decision, the Supreme Judicial Court required the judiciary to instruct juries that an employee must prove the employee's membership in the protected class is the determining factor or cause in the adverse action taken.49 The employee can sustain the causation burden by persuading the jury that retaliation was a determinative factor in the decision to take adverse action against her.50 The plaintiff need not, however, demonstrate that her termination occurred solely because of retaliation, and need only prove that but for the retaliatory animus, she would not have suffered the adverse action.51

III. The Plaintiff's Prima Facie Case

A. What Constitutes Protected Activity

Employee protected activity generally falls into two categories: (1) participation, such as filing a claim or assisting in a sexual harassment investigation; or (2) opposition to unlawful employment practices.52 The participation category offers broader protection in allowing employees who have in any manner initiated or participated in a formal claim or investigation to proceed with and prevail on retaliation claims, even when the underlying claim has no merit.53 The opposition category, by contrast, protects only those employees who oppose unlawful practices or reasonably and in good faith believe an employer's practices are unlawful.54 The employee's opposition to his or her perceived mistreatment by the employer is not protected.55 However, one could argue under Massachusetts law that a plaintiff must demonstrate good faith regardless of whether the employee proceeds under the participation or opposition clause.56 For example, in Tate, the court emphasized the necessity of proof that the plaintiff was "reasonable in her belief" that the employer's desire to retaliate against her was a determinative factor in her discharge, without differentiating whether the plaintiff engaged in protected participation or opposition.57

1. Participation

Employees are insulated against retaliation for participating in protected activity, such as filing charges of discrimination or testifying in proceedings or investigations authorized by Chapter 151B, Title VII or other statutes.58 For example, filing a discrimination charge with the EEOC or Massachusetts Commission Against Discrimination ("MCAD") constitutes protected activity.59 Initiating a lawsuit in court is similarly protected.60 Additionally, serving as a witness in a co-worker's formal sexual harassment lawsuit or EEOC investigation also qualifies as protected activity.61

Courts are somewhat divided, however, as to whether informal, internal complaints and participation in internal investigations constitute protected activity under the participation clause. The majority rule that has developed in the federal courts states that only formal complaints and proceedings qualify for protection under the participation clause.62 The Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals do not recognize internal complaints as protected activity.63 In Williams v. West,64 the Seventh Circuit held that an employee who merely raised sexual harassment issues with her employer was not protected by Title VII's anti-retaliation provision.65 Similarly, in Brown v. Runyon,66 the Eighth Circuit held that a postal service employee's visit to the employer's Equal Employment Opportunity counselor did not constitute participation because the employee's purpose was only to explore her options.67 In its 1998 guidelines interpreting the anti-retaliation provisions discussed above ("EEOC Guidelines"), the EEOC limits actionable participation to investigations or proceedings brought under statute and opines that internal investigations are not protected participation.68

Federal courts in the First Circuit have made varying conclusions on whether informal activities qualify as protected participation. In 1995, the United States District Court for the District of Massachusetts, in Ruffino v. State Street Bank and Trust Co.,69 held that internal complaints of sexual harassment constitute protected activity.70 The court reached a similar result in Allder v. Daniel O'Connell's Sons,71 in its holding that complaining to an employer constitutes protected activity.72 Further, in Valerio v. Putnam Associates, Inc.,73 the First Circuit, advocating a broad interpretation of "filing" a complaint, held that an employee's informal complaints to her supervisor were protected activity under the Fair Labor Standards Act.74

In Morris v. Boston Edison Co.,75 however, the United States District Court for the District of Massachusetts held that the plaintiff's participation in an internal investigation was not protected activity, noting that the participation clause applies only to participation in external or formal investigations.76 The Morris court reasoned that, in contrast to the opposition clause, the participation clauses of Chapter 151B and Title VII apply only to external or formal investigations and proceedings.77

Massachusetts state courts are more willing to recognize protected activity under the participation clause absent an external, formal complaint. This is, perhaps, the result of Chapter 151B's prohibition against coercing or intimidating employees who exercise their rights under the statute. For example, in Bain v. City of Springfield,78 the Supreme Judicial Court upheld a jury verdict on the plaintiff's retaliation claim based on the employer's reaction to a letter the plaintiff wrote to the company complaining of gender discrimination and requesting a response within 10 days.79 The Bain court noted that Chapter 151B prohibits employers from coercing, intimidating or interfering with another person in the exercise of her rights under the chapter, while protection under Title VII is limited to making charges, testifying, assisting, or participating in enforcement under the statute.80

2. Opposition

Protected activity under the opposition clause includes a broader range of activities, such as telling one's employer to stop sexually harassing her, refusing to obey an apparently discriminatory order (such as terminating a disproportionate number of minority employees), or making informal remarks about discrimination in the workplace.81 According to the EEOC, protected activity under the opposition clause can include internal activities such as: (a) threatening to file a lawsuit or formal charge of discrimination; (b) complaining to anyone (internally or externally) about alleged discrimination; (c) engaging in non-verbal conduct such as picketing or a work slowdown; (d) refusing to obey an order based on a reasonable belief that it is discriminatory; or (e) requesting accommodation of a disability or religious belief.82 For example, in Laughlin v. Metropolitan Washington Airports Auth.,83 the Fourth Circuit held that protesting and voicing one's opinions to direct an employer's attention toward its discriminatory activities constitutes protected opposition activity.84 (This activity would not constitute participation, however, because the employee did not actually file a charge or testify in an EEOC or MCAD proceeding). Moreover, employees engaged in opposition activity need not articulate the alleged discrimination perfectly, and an inquiry as to why women were losing their offices while men did not could qualify.85

A retaliation claim brought under the opposition clause requires, however, that the employee have a reasonable belief that the practice she opposes is in fact unlawful.86 Additionally, the employee must protest the alleged discrimination in a reasonable manner.87 The activity or practice complained of need not actually be a statutory violation, as long as the plaintiff has a reasonable belief that the company violated the law and she communicates this to the employer in good faith.88

The United States Supreme Court clarified the opposition clause requirements in Clark County School District v. Breeden.89 The Court held that the plaintiff's retaliation claim was precluded because "[n]o reasonable person could have believed that [a] single incident" of alleged sexual harassment, involving a comment made to the plaintiff by a co-worker, violated Title VII.90 The plaintiff argued she had been retaliated against for complaining to her employer about an interaction with her male supervisor.91 During a meeting with the supervisor and a male co-worker to review job applications, the supervisor mentioned that an applicant had once told a co-worker "making love to you is like making love to the Grand Canyon."92 The supervisor said to the plaintiff "I don't know what that means," after which the other male employee at the meeting said "I'll tell you later," and both men started to laugh.93 Reversing the Ninth Circuit's prior ruling that a genuine issue of fact existed as to whether the plaintiff had engaged in protected activity, the Court imposed a strict standard of reasonableness in order for internal opposition to qualify as protected activity.94 Clark County highlights the narrower window of what activities constitute protected activity under the opposition clause.95

Additionally, the plaintiff's claim may also be precluded as actionable opposition if it is not objectively reasonable to believe that the employee opposed the employer's unlawful conduct.96 For example, following an employer's instructions to describe an arguable incident of sexual harassment one witnesses between colleagues does not constitute opposition to unlawful behavior under Chapter 151B.97 An employee's refusal to falsely implicate a co-worker in a purported workplace theft, however, does constitute protected activity.98

Moreover, the employee's right to oppose discrimination does not translate into a right to refuse to work when one believes that discrimination or retaliation has occurred.99 A plaintiff goes "beyond the scope of protected opposition when he damages the basic goals and interests of the employer, who has a legitimate interest in seeing that its employees perform their work well."100 Under the opposition clause, courts balance the employee's right to engage in reasonable activities in opposing discrimination with the employer's right to select and control personnel.101 For example, in Hazel v. U.S. Postmaster General,102 the First Circuit deemed the plaintiff's admission that he refused to report to work to be fatal to his retaliation claim.103 Similarly, a plaintiff's refusal to perform work that he believed exceeded his physical capacity did not constitute opposition to unlawful activity.104

The courts' varying interpretations of what constitutes protected participation and opposition can prove very confusing to Massachusetts employers. As a general principle, an employer must be very careful in how it responds when an employee files a formal discrimination charge since the employee has met her initial burden of participating in protected activity, regardless of the viability of her claims. Any adverse action against the employee could result in the employer's liability for retaliation.

When an employer encounters an employee who has voiced her opposition to seemingly unlawful activities by complaining about discriminatory conduct witnessed in the workplace, for example, the employer should have procedures in place for investigating such claims and ensure that it does not act in what may be perceived as a retaliatory manner towards the complaining employee. First, the test as to whether an employee has legally opposed discrimination is subjective as well as objective which makes it more difficult for the employee to satisfy her prima facie burden. Second, the employee could quickly escalate a claim to the formal filing stage, thereby blurring the lines between opposition and participation.

B. Adverse Action

Once the plaintiff establishes that she has engaged in protected activity, she must show that she suffered "adverse action."105 The plaintiff must establish that the employer took action "substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation."106 The most obvious forms of adverse action, the "ultimate employment decisions," include termination, denial of promotion, demotion, suspension, and refusal to hire.107 The United States District Court for the District of Massachusetts has also held that constructive discharge, where the plaintiff's working conditions are so intolerable that she is forced to resign, qualifies as an adverse action.108 Reducing an employee's pay or giving a below average salary increase would also qualify as an ultimate employment decision and therefore constitute adverse action.109

What are less clear and frequently litigated are other types of non-tangible detrimental actions potentially sufficiently adverse to qualify as retaliatory. The federal circuits are split as to whether an employer's action must be "material" or "tangible" to constitute adverse action. Certain courts limit adverse action to the "ultimate employment actions" resulting in concrete losses, such as refusal to hire, discharge or demotion.

For example, the Fifth Circuit, in Mattern v. Eastman Kodak Co.,110 held that the anti-retaliation provision of Title VII includes only ultimate employment decisions and does not extend to "vague harms."111 In Mattern, the plaintiff filed an EEOC charge alleging that the members of her training crew sexually harassed her and that the employer condoned their behavior.112 Reversing the jury's verdict in her favor on her retaliation claim, the court stated that the alleged retaliatory behavior, including hostility from co-workers, having tools stolen and her resulting anxiety, did not constitute ultimate employment decisions and could not even be attributed to the employer.113

In addition, other events, such as threatened termination and being placed on final warning, did not qualify as adverse because of their lack of material consequence.114 The Mattern court concluded that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions."115 Similarly, in Ledergerber v. Stangler,116 the Eighth Circuit held that although the employer's decision to reassign the plaintiff's staff resulted in loss of prestige and had a tangible effect on her employment, it involved only minor changes in working conditions and no reduction in pay or benefits and therefore did not constitute adverse action.117

The Second, Third, Fourth, and Sixth Circuits, while they do not strictly limit adverse action to ultimate employment decisions, have defined adverse employment action narrowly, requiring a material or tangible effect on the employee's terms and conditions of employment.118 In Robinson v. City of Pittsburgh,119 the Third Circuit held that "unsubstantiated oral reprimands" and "unnecessary derogatory comments" following the filing of a complaint did not constitute adverse action because they did not alter the compensation, terms, conditions, or privileges of employment.120 In Garber v. New York City Police Department,121 the Second Circuit held that due to the absence of a change in job description, title, hours worked, salary, benefits, or opportunity for promotion, the plaintiff's involuntary transfer was not an adverse action.122

Conversely, courts in the Seventh, Ninth, Tenth, Eleventh, and District of Columbia Circuits have found adverse action in non-tangible, less "severe" things such as poor evaluations, the employer's toleration of harassment by co-workers and significant reduction in responsibilities.123 In Knox v. State of Indiana,124 the Seventh Circuit held that in light of absence of language in Title VII's anti-retaliation provision requiring that the adverse action be tangible or material, the employer's tolerance of the plaintiff's supervisor's harassment of her after she complained about him could be considered retaliatory.125 After enduring three months of sexual harassment by her supervisor, the plaintiff, through a co-worker and her co-worker's supervisor, reported his actions.126 The state conducted an investigation and determined that the supervisor had in fact sexually harassed the plaintiff. The state disciplined the supervisor by reducing his rank, issuing him a written reprimand, and suspending him without pay for 10 days.127 During the investigation, however, upon the supervisor telling his colleagues that the plaintiff had filed the complaint against him, the co-workers made demeaning statements about her, made it known that they were going to make her life "a living hell," and continually harassed her.128

Advocating a more liberal approach to the adverse action requirement, the Knox court stressed that the law does not take a "laundry list" approach to retaliation and that actions that put the complainant in a more unfriendly working environment, such as moving the plaintiff from a nice office to a "dingy closet;" depriving her of previously available support services; or, permitting her co-workers to punish her for invoking her Title VII rights have a retaliatory effect.129 Likewise, the Tenth Circuit in Gunnell v. Utah Valley State College,130 found that sufficiently severe co-worker harassment may constitute adverse action.131 The EEOC Guidelines concur with this interpretation and broadly construe adverse action to include "less serious" employment actions such as threats, reprimands and negative evaluations.132

Federal courts in the First Circuit have likewise varied in interpretation of the adverse action requirement. The First Circuit has found adverse employment action based on non-tangible occurrences such as counselings and warnings or negative performance evaluations.133 For example, in White v. New Hampshire Department of Corrections,134 the First Circuit held that the plaintiff's allegations that she was continually harassed by co-workers, transferred out of her unit, and constructively discharged constituted adverse action.135 Moreover, in Blackie v. Maine,136 the court determined that depriving the employee of significant responsibility qualifies as adverse action.137 However, in Flanagan-Uusitalo v. D.T. Industries, Inc.,138 the United States District Court for the District of Massachusetts held that excessive scrutiny unaccompanied by a change in working conditions that materially disadvantages the employee does not constitute retaliation.139 Similarly, in Kearney v. Town of Wareham,140 the same court held that the plaintiff's assignment to a less desirable position did not constitute a materially adverse employment action.141

In the absence of guidance from the Supreme Judicial Court, the Massachusetts Superior Court, building on the language articulated in MacCormack, has traditionally interpreted the adverse action requirement more strictly than the First Circuit, requiring something more than negative evaluations, transfer, threats, or demeaning treatment.142 In Ritchie v. Massachusetts State Police,143 the court held that the employer rating the employee lower than it had previously did not qualify as adverse action.144 Similarly, in Cameron v. Massachusetts State Police,145 the court rejected the plaintiff's retaliation claim based on an unfulfilled threat to transfer her.146 Note, however, that a 2001 Massachusetts Superior Court case, which stated that "[w]hile retaliation typically takes the form of a discharge, a demotion, a transfer, or some similarly tangible change in employment responsibilities, employers are liable as well for more subtle actions taken in retaliation against their employees."147

C. The Importance of the Causal Connection

In order to state a prima facie case of retaliation, it is crucial that the plaintiff prove that the adverse action was causally related to the protected activity.148 First, the plaintiff must show that "the alleged retaliators knew of the plaintiff's protected activity and that a retaliatory motive played a part in the adverse employment actions alleged."149 Practically speaking, an employer cannot retaliate against an employee when it does not know of the protected activity. In a case involving alleged retaliation for engaging in union activity, the Massachusetts Appeals Court held that the employer's knowledge of the protected activity may be found from circumstantial evidence from which a "reasonable inference of knowledge may be drawn."150 The Appeals Court stated that such evidence may include the timing of the discriminatory actions, the employer's general knowledge of its employees' union activities, the employer's animus against the union, and the pretextual reasons given for the personnel actions.151 In short, the employee need not offer direct evidence of the employer's knowledge of the protected activity to prevail.152

Therefore, the plaintiff can meet this burden by: 1) establishing the employer's knowledge of the protected activity; and 2) emphasizing either the temporal proximity of the protected activity and the adverse action153 or by examining the treatment of similarly situated employees. Further, the plaintiff must offer evidence of retaliatory motive and show that "but for the filing and pursuing of his original discrimination claim the adverse reaction would not have been taken. . . ."154 Merely resting on conclusory accusations without concrete documentation of the causal link will doom the retaliation claim.155

1. Temporal Relationships

The method by which most plaintiffs attempt to establish the causal relationship relates to the timing of the adverse action. Close temporal proximity between the protected activity and the adverse employment action permits an inference of the causal nexus necessary for a finding of retaliation.156 The Ruffino court held that the adverse actions taken against the plaintiff, including unfair monitoring, criticism, an unfair performance review, and pay cut, occurred and escalated during and immediately following her decision to pursue her sexual harassment complaints, thereby satisfying the causation requirement.157 Note, however, that the inference can be rebutted by evidence of a legitimate, non-retaliatory reason for the action taken, such as poor performance or a reduction in force.158

When the adverse action is not immediate, the cases draw no bright lines as to what constitutes a brief enough period to create this inference.159 Courts have found sufficient evidence of causation based on an elapsed time period of two months,160 five months,161 and nine months between the protected activity and adverse action.162 Moreover, the elapsed time period between the appointment of a new supervisor, the protected activity, and the adverse action may also be relevant.163

Although a brief enough time period between the protected activity and adverse action may create an inference of retaliation, this will not, in and of itself, establish a prima facie case of retaliation.164 "The plaintiff cannot meet the burden of causation merely by relying on chronology."165 As stated above, conclusory allegations of retaliation, unsupported by specific facts, will not advance the plaintiff's claim past summary judgment.166 In order to succeed, the plaintiff will have to provide more than just the temporal link.167 In Piderit v. Siegal & Sons Investments, Ltd.,168 the Massachusetts Appeals Court held that the plaintiff's failure to show that his discharge was in any way related to his worker's compensation claim warranted summary judgment for the employer.169 The Piderit court was unwilling to find retaliation based solely on the fact that the employee was terminated shortly after sustaining a workplace injury.170 The plaintiff must accompany the temporal evidence with concrete documentation of causation.

Moreover, the existence of too large a gap of time between the protected activity and adverse action may also negate a finding of retaliation. For example, the elimination of an employee's position eleven months after she filed an MCAD complaint alleging gender discrimination occurred too long after the protected activity to support a finding of retaliation.171 Several First Circuit cases have rejected retaliation claims based on an excessive period of time between the protected activity and adverse action, including periods of nine months and eleven years.172 In other circuits, delays of even one to three months have negated the plaintiff's ability to establish the causal connection.173 The inference of the causal connection simply disappears with too large a gap in time between the protected activity and adverse action.174

2. Treatment of Similarly Situated Employees

Another means by which the plaintiff may establish causation or discriminatory motive is to demonstrate that the employer treated similarly situated employees, who have not engaged in protected activity, differently.175 If the employer can show, however, similar treatment of other employees who did not engage in protected activity, the plaintiff's claim will likely fail.176 In Costello v. Massachusetts Rehabilitation Commission,177 the United States District Court for the District of Massachusetts determined that because the defendant took identical adverse action against a male employee who had never alleged discriminatory treatment, the plaintiff could not establish a cause of action for retaliation.178 Similarly, in Dodi v. The Putnam Cos.,179 the First Circuit stressed the lack of evidence that the plaintiff was treated differently than his "non-minority or non-complaining counterparts."180 Dodi involved a claim that the plaintiff's rating and performance reviews declined after filing a race and national origin charge with the MCAD.181 The complainant further alleged that he was excluded from meetings and isolated from his department in retaliation for filing his complaint.182 The court emphasized that the employer had presented sufficient evidence that the plaintiffs' work was seen as sub-standard and that he failed to prove that the evaluations were inaccurate or that he was treated differently from his peers.183

IV. Procedural Issues that Permeate Retaliation Claims

A. Standing to Sue

Most retaliation cases involve current employees who claim they have suffered adverse action, or who allege that the employer discharged them for engaging in protected activity. The United States Supreme Court has held, however, that, at least under Title VII, former employees can bring a cause of action for retaliation against their former employer, which took place after the employment relationship ended.184 In Robinson v. Shell Oil Co.,185 the plaintiff claimed that his former employer gave him a negative job reference in retaliation for filing an EEOC charge following his discharge.186 The Fourth Circuit affirmed the dismissal of the claim on the grounds that Title VII's anti-retaliation provision did not apply to former employees.187 Reversing the Fourth Circuit, the Robinson court reasoned that the definition of the term "employees" contained in Title VII was ambiguous and could be interpreted to include former employees.188 Therefore, the individual's former employer could be liable for retaliation for giving a negative reference, which impeded the former employee from obtaining another job.189 The EEOC agrees that post-employment retaliation designed to interfere with an individual's employment prospects is unlawful.190

Another unsettled issue in the area of standing involves whether relatives employed by the same employer can assert retaliation claims on behalf of each other. Some courts require that the relative personally engage in some type of protected activity to be able to assert the claim. For example, in Holt v. JTM Industries, Inc.,191 the Fifth Circuit held that a husband placed on administrative leave after his wife filed an age discrimination charge with the EEOC did not have standing to sue for retaliation because he did not engage in protected activity.192 Other courts, however, have determined that certain relatives, such as spouses or parent and son, have automatic standing to bring a retaliation suit on behalf of the family member.193 The EEOC advocates a broad interpretation, prohibiting retaliation against somebody "so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights."194 Neither the federal nor state courts in Massachusetts have addressed this issue.

B. Exhaustion of Administrative Remedies

An important procedural issue that arises in retaliation cases is whether an aggrieved individual, who has previously filed a discrimination charge, must file a separate retaliation claim at the MCAD or EEOC before filing suit in state or federal court. A plaintiff claiming discrimination under Chapter 151B or Title VII may only bring a lawsuit in court if she has previously filed a timely charge with the appropriate administrative agency.195 Failure to comply with this administrative requirement will result in dismissal of the court action.196 The question becomes whether the employee who suffers retaliation subsequent to filing her original charge may bring a claim for retaliation in court without first filing a separate retaliation charge before the administrative agency. The general rule that has emerged in the federal circuits states that an employee is not barred from filing a retaliation claim in court if the claim is reasonably within the scope of the prior discrimination charge or if the retaliatory conduct was taken in direct response to the EEOC charge.197

The First Circuit has agreed with this reasoning, noting that most circuits have permitted plaintiffs to bring retaliation claims in court even though only the underlying discrimination charge was made to the agency.198 Abrogating its prior holding in Johnson v. General Electric,199 the First Circuit has adopted the rule that "retaliation claims are preserved so long as the retaliation is reasonably related to and grows out of the discrimination complained of to the agency - e.g., the retaliation is for filing the agency complaint itself."200 To hold otherwise, according to the First Circuit, would "exalt form over substance."201 Although the Supreme Judicial Court has not squarely addressed this issue, the Appeals Court has intimated that it would adopt the federal interpretation.202 Moreover, at least one Superior Court decision has adopted this rule permitting retaliation claims reasonably related to the prior charge to proceed in court without filing a separate agency charge.203

A similar analysis applies when the plaintiff seeks to add a claim of retaliation against a specific individual who was not named as a defendant in the original agency charge. As a general rule, an MCAD complaint must contain appropriate identification of the persons alleged to have committed unlawful discriminatory acts and a concise statement of those acts.204 Failure to identify somewhere in the complaint the individuals alleged to have violated the law bars action against those individuals in Superior Court.205 The United States District Court for the District of Massachusetts has held, however, that "failure to name a party as a respondent in a charge filed with the MCAD does not preclude a later civil action against that party if the conduct of the party was put at issue by the charge and the party had notice of and an opportunity to conciliate the charge."206

Further, in Chatman v. Gentle Dental Center,207 the court, noting the absence of state authority on this issue, stated that when faced with this question, the Supreme Judicial Court would adopt this rule.208 In King v. First,209 the Appeals Court, while not permitting the plaintiff to assert his Superior Court retaliation claim against his former landlord individually, tentatively adopted the District Court's reasoning set forth in Chatman and Chapin v. University of Massachusetts at Lowell210 that individuals who receive notice of the charge and who participate in conciliation proceedings can be sued in Superior Court without being named as a parties in the MCAD charge.211 Moreover, several Superior Court cases have similarly held that failure to name an individual party will not bar a later court action against that person for retaliation if he had notice or participated in the agency proceedings.212

C. The Viability of Retaliation Claims in the
Absence of Underlying Discrimination.

Plaintiffs may successfully assert retaliation claims even if the underlying discrimination claim fails.213 In Bain v. City of Springfield,214 the Supreme Judicial Court held that the plaintiff stated a cause of action for retaliation based on the mayor's statement that the city should "get rid of" the plaintiff and his reprimand of her for bringing grievances, despite the fact that the threat to fire her was never carried out.215 The court found this activity to constitute an unlawful threat or act of intimidation prohibited by Chapter 151B and upheld the jury's $100,000 punitive damages award.216 As stated by the United States District Court for the District of Massachusetts in Petitti v. Commonwealth of Massachusetts Department of Health,217 "[t]he fact that a plaintiff eventually proves unable to establish that the employer discriminated against him in the first place is not fatal to his prima facie case of retaliation."218 Therefore, it is very important that employers understand that by taking adverse action against an employee who complains about alleged discrimination, the employer is subjecting itself to potentially large damages awards, even if the underlying complaints are meritless.

D. Counterclaims

As stated above, it is unlawful for an employer to retaliate against an employee for filing a complaint.219 An interesting and recently developing consideration is whether an employer retaliates by filing a counterclaim for defamation, abuse of process, or for declaratory judgment against the employee who has instituted formal litigation. The First Circuit has held that Title VII's anti-retaliation provision does not immunize employees from the consequences of their actions.220 Additionally, the Supreme Judicial Court recently held, in Sahli v. Bull HN Information Systems, Inc.,221 that when an employer files a counterclaim seeking declaratory relief under a contract entered into with the employee and the counterclaim has a legitimate basis in law and fact, the employer does not violate Chapter 151B's anti-retaliation provision.222 The plaintiff in Sahli filed a discrimination claim against her former employer several months after being laid off and after signing a severance agreement releasing the company from any claims arising out of her employment.223 She based her charge on the company's decision to hire a younger woman to fill a vacant position for which the plaintiff had applied.224 In response to her complaint, the company filed a counterclaim for declaratory relief seeking interpretation of the severance agreement, which the company alleged barred the plaintiff's claim.225

Balancing the employer's First Amendment right to seek judicial resolution of disputes with the employee's statutory right to seek redress for alleged discrimination without fear of retribution, the court held that the employer did not violate Chapter 151B by filing its complaint for declaratory relief.226 The court described the interest in remedying discrimination as weighty, but stressed that it is not so weighty as to restrict an employer's right to petition the courts.227 The court also noted that the employer's counterclaim had a legitimate basis in law, pursuant to Mass. Gen. Laws ch. 231A, and in fact, based on the language of the release executed by the parties and the lack of clarity as to whether the plaintiff's charge challenged the employer's failure to relocate her prior to her layoff or failure to hire her into a vacant position after she executed the agreement.228 Finally, the court noted that evidence of the filing of the lawsuit alone was insufficient to establish retaliatory motive.229

Note that the Sahli case involved an employer merely seeking a declaration of its rights pursuant to a written agreement.230 The landscape is somewhat different when the employer responds to a lawsuit with a counterclaim for monetary relief, such as defamation. The limited number of federal cases in this area provides no clear answers. In Shafer v. Dallas County Hospital District,231 the employer directed an employee accused of sexual harassment to file a defamation claim against the complaining employee.232 The United States District Court for the Northern District of Texas, noting that the employer funded the lawsuit, held that the employer's behavior could form the basis of a Title VII retaliation charge.233 In Blistein v. St. John's College,234 the United States District Court for the District of Maryland held that while a breach of contract counterclaim by an employer against a former employee who had signed a severance agreement would not be retaliatory, a defamation counterclaim would.235 By contrast, the United States District Court for the Middle District of Florida held, in Urquiola v. Linen Supermarket, Inc.,236 that an employer is not precluded from filing a defamation claim to vindicate its reputation so long as the claim is brought in good faith.237

A sound way for Massachusetts businesses to handle this unsettled issue is to think very carefully and seek legal counsel before filing lawsuits or counterclaims against current or former employees. Also, it appears clear that a claim for declaratory relief is generally not deemed retaliatory, nor should it. It is not unreasonable that employers be permitted to seek judicial interpretation of agreements by way of a claim for declaratory relief just like other litigants. Neither the Supreme Judicial Court nor the Appeals Court has determined, however, whether a claim for defamation against an employee is retaliatory in nature when such claim follows protected activity or is asserted as a counterclaim. Therefore, employers should avoid asserting such claims until the courts clarify this issue.

V. Potential Remedies

The remedies available to successful retaliation plaintiffs include temporary or permanent injunctive relief, compensatory damages (including back pay and emotional distress damages), and punitive damages.238 Plaintiffs may also recover attorneys' fees.239 With respect to compensatory and emotional distress damages, the plaintiff may only recover those damages caused by the defendant's unlawful retaliatory conduct.240

The potential for punitive damages in retaliation cases is of the most significance to employers.241 Punitive damages are generally not recoverable under Massachusetts law unless specifically authorized, for example, by statute.242 Both Title VII, as amended by the 1991 Civil Rights Act, and Chapter 151B specifically authorize punitive damages in certain employment discrimination cases in order to deter intentional acts of discrimination by employers.243 In order to recover punitive damages for a company's violation of Title VII (or other anti-discrimination statutes), the plaintiff must show that the employer acted with "evil motive or intent or with reckless or callous indifference to the plaintiff's federally protected rights."244 Massachusetts courts require proof that the employer's behavior was "intentional and offensive. . . [and] an outrageous affront to an individual's personal dignity that was both recklessly indifferent to the plaintiff's rights and egregiously beyond the pale of what our society tolerates in the work place."245

Plaintiffs can similarly recover punitive damages in retaliation cases where the defendant's conduct was "outrageous and engendered by evil motive or reckless indifference to the rights of others."246 Moreover, a court may award a retaliation plaintiff punitive damages even if the jury finds against the plaintiff on her discrimination claims and does not award any compensatory damages.247 In Zimmerman v. Direct Federal Credit Union,248 the First Circuit ultimately upheld a compensatory damages award of $200,000 and a $400,000 punitive damages award against the company, which launched "a deliberate, systematic campaign to punish the plaintiff" for filing charges of sex and pregnancy discrimination.249

The plaintiff has the burden of demonstrating her damages and the court will likely grant summary judgment if the plaintiff cannot demonstrate any damages as a result of the alleged retaliation.250 For example, the United States District Court for the District of Massachusetts held in Schuler v. Polaroid Corp.251 that the fact that the plaintiff's negative performance review may have been retaliatory did not sustain his claim, because the plaintiff failed to show that the appraisal, which he received two months after his job was eliminated as part of a reduction in force, caused him any damage.252 Therefore, even if a plaintiff surmounts the adverse action hurdle, she still faces the challenge of proving that the retaliation caused her some sort of damage.

VI. Avoiding Retaliatory Sexual Harassment Investigations

A. Potential Liability

A poorly handled sexual harassment investigation may give rise to a retaliation cause of action. In 1998, the United States Supreme Court issued two decisions which created an affirmative defense to employers who use reasonable care in preventing and correcting sexual harassment.253 Although Massachusetts has not yet adopted the defense propounded in these cases,254 Massachusetts law does impose a duty on employers to investigate sexual harassment complaints and take remedial action.255

When the employer negatively focuses its investigation on the complainant, she may have a retaliation claim. For example, in Blackmon v. Pinkerton Security & Investigative Services,256 the Eighth Circuit held that an employer's sexual harassment investigation, which focused almost exclusively on gathering unfavorable information about the complainant, violated her right to be free from retaliation.257 Moreover, if the employer takes adverse action against the complainant in the course of an investigation, it could be further exposing itself to a retaliation claim. In DiIenno v. Goodwill Industries Of Mid-Eastern Pennsylvania,258 the Third Circuit held that transferring the complaining employee, in the course of an investigation, to a position it knew she could not perform, constituted adverse action and was retaliatory.259 According to the Third Circuit, however, unsubstantiated oral reprimands and unnecessary derogatory comments made in the course of an investigation were not retaliatory because such conduct did not constitute adverse action.260 It appears that while federal courts are willing to find retaliation based on how an employer conducts a sexual harassment or other type of investigation, such victories will be limited based on the somewhat high standards of what constitutes adverse action.

This issue continues to develop under Massachusetts law. The MCAD has stated that employees should not be compelled to work with an alleged harasser pending an investigation,261 nor should an employer be permitted to place a complaining employee on a leave of absence, even for her own "protection," pending an investigation.262 Therefore, in order to take advantage of the affirmative defense and to comply with its obligations, the employer must handle all complaints of harassment and discrimination very carefully.

B. Preventative Measures

1. Basic Steps to Avoiding Retaliation in the Workplace

a. Anti-Retaliation Policy

The employer should create and distribute a policy prohibiting retaliation in the workplace.263 This policy should include the employer's zero tolerance policy towards retaliatory behavior and provide complaint mechanisms for aggrieved employees.264 Moreover, the policy should describe the investigatory procedure that the employer will take in response to complaints of retaliation, requiring employees' cooperation in such procedures, and inform that violators will be disciplined, up to and including discharge.265 This policy should be disseminated annually and posted conspicuously.266 In short, the anti-retaliation policy should closely mirror the employer's sexual harassment policy.

b. Training

Although enacting a policy is an effective first-step in prohibiting retaliation in the workplace, the policy will not achieve its intended goals unless managerial employees understand and enforce it. Employers should train their supervisors and managers on retaliation issues and implementation of the anti-retaliation policy.267 All employees with the authority to discipline, discharge, evaluate, and promote employees should receive training as to what constitutes retaliation and how to respond when a complaint is brought to their attention. Finally, employers should advise employees to seek human resources support or legal advice before making and implementing decisions which could be construed as retaliatory.

c. Performance Evaluations and Discipline

Inadequate and non-candid performance evaluations and discipline procedures can fuel retaliation claims. As stated above, an employee who engages in protected activity and subsequently receives a negative performance evaluation or a warning for some non-related issue will likely argue that the employer is retaliating against her.268 Therefore, employers must honestly and regularly evaluate and discipline employees, and document the same, so that negative feedback given subsequent to the protected activity is consistent with the previous negative feedback. This will go a long way in negating any inference of retaliation in response to the activity. Further, when disciplining an employee who has engaged in protected activity, employers should ensure that the feedback is documented, supported and consistent with treatment of similarly situated employees.

2. Legally Effective and Non-retaliatory
Investigations

The employer's goal in conducting any internal investigation is threefold. First, the company seeks to provide a comprehensive review of the complaint by eliciting information from all parties involved in an impartial manner, while respecting the privacy rights of these individuals. Second, the employer can use this opportunity to treat all involved with dignity and respect, evidencing its commitment to eradicating discrimination and harassment in the workplace. Finally, in so doing, the employer instills confidence in its investigative process and its commitment to take complaints seriously and without retaliation against those who lodge such complaints.

Below are some suggestions which will assist the employer in conducting internal investigations in a reasonable and non-retaliatory manner.

a. Respond Immediately

The first step in avoiding claims of retaliation in the investigative process is to respond to any and all complaints promptly. Both the EEOC and MCAD require prompt remedial action reasonably calculated to end the alleged harassment.269 The need for an investigation is triggered when the employer "has knowledge" of sexual harassment in the workplace.270 The appropriate length of time to respond to a complaint and conduct the investigation varies depending on the circumstances of each case. Courts recognize that employers may need a few days to prepare for and conduct the necessary interviews and have found that investigations completed within three days or even two weeks sufficient.271 Conversely, a delay of four weeks in completing an investigation is likely to be considered insufficient.272 It makes practical sense, therefore, to conduct an investigation right away, when the witnesses' memories surrounding the events are fresh and any documentary or other physical evidence of the alleged harassment or discrimination still exists. The employer's e-mail server should also be immediately reviewed.

b. Decide Who Will Conduct the Investigation

The employer faced with a harassment complaint must first determine who should conduct the investigation. The employer may choose human resources personnel, in-house or outside attorneys, or an outside consultant. Employers should be aware, however, that using an outside attorney to conduct the investigation could result in the attorney's disqualification from representation of the company in any subsequent litigation concerning the matter.273 Moreover, the investigative process, notes and report may not be protected by the attorney-client privilege and work product doctrine, and the employer may be forced to disclose this material during the litigation. Recommended steps to the employer who decides to use outside counsel to conduct the investigation include: (1) confirm that the investigation is being conducted for the purpose of providing legal advice to the company; (2) label all privileged documents "privileged attorney-client communications" or "attorney work-product" throughout the litigation; and (3) explain to witnesses that any questions should be directed to the outside counsel and inform them that the interviews are confidential and that they may not disclose the contents without prior approval of the outside attorney. Any conflicts of interest requiring separate legal representation must also be considered.

c. Interim Measures

It may be necessary to take certain measures pending an investigation to separate the complainant and alleged harasser. These measures could include temporarily transferring the alleged harasser; placing the alleged harasser on paid administrative leave; placing the complainant on paid administrative leave, only if she so requests; or instructing the harasser to cease the conduct.274 The need for such measures will depend on the severity of the allegations. For example, if an employee complains that her direct supervisor, responsible for her work assignments, evaluation, and merit increases, has been harassing her, the employer should either separate them or temporarily remove that supervisor's decision-making authority over the complainant.275 This should avoid any potential retaliation by that supervisor by way of negative evaluations, undesirable or degrading assignments, or more obvious financial retribution. Finally, the employer should closely monitor and re-evaluate the interim measures that it has taken.276

d. Interview the Complainant

How the employer conducts its interview with the complainant is crucial to avoiding retaliation claims. The employer should thank the employee for coming forward, explain its duty to conduct the investigation, and stress that the interview is designed to give her the chance to fully explain her concerns.277 The employer should elicit as many details as possible and convey to the employee that such complaints of discrimination and harassment are taken very seriously. The employer should ask the complainant what happened, when, where, who was present, who witnessed the incidents, whether the complainant has told anyone about the incidents, whether there have been similar incidents between the complainant and the accused, whether such activity is on voicemail, e-mail, or video, and whether the complainant has any other issues she would like to discuss.

Moreover, the employer should advise the complainant that while it cannot promise complete confidentiality, it will endeavor to keep the allegations as confidential as possible, revealing the issues only to those who need to know.278 The company should also stress that its goal is to end promptly the harassment and ask the employee what resolution she seeks to the problem. It is advisable to obtain a written statement from the complainant if possible, and to reduce the employer's notes of the interview to writing. Finally, the employer should inform the complainant that it will not tolerate any form of retaliation against her for coming forward and encourage her to report any such behavior.279

e. Interview the Accused

The objective in interviewing the accused is to give him/her an opportunity to respond to the complainant's allegations. The employer should follow the same general interviewing guidelines and elicit as much detail from the accused as possible, obtain the names of any witnesses or individuals with knowledge of the events, and stress to the accused that the employer does not tolerate harassment in the workplace.280 Further, the employer should similarly inform the accused that it will try to keep the matter as confidential as possible and instruct the employee not to disclose the contents of the interview.281 Again, the discussion should be reduced to writing.

f. Interview Witnesses

Employers should interview anyone with knowledge of the incidents raised in the complaint. These interviews should be conducted discreetly, privately and in person.282 Witnesses should be assured that the employer will not take retaliatory measures against them for cooperating with the investigation.283 This is very important as employers can be liable for retaliating against individuals who merely participate in investigations under the anti-discrimination statutes, which includes giving witness statements. Additionally, the employer should inform the witness that the discussion will be kept as confidential as possible and instruct the witness to keep the matters discussed confidential. Again, the interview should be reduced to writing.284

g. Take Appropriate Remedial Action

Once the employer completes its interviews, it must take reasonable corrective action should it determine that discrimination or harassment has occurred.285 The remedial action should be proportional to the severity and frequency of the harassment alleged.286 For example, in certain circumstances, a verbal reprimand to the alleged harasser with instructions to discontinue his conduct may be sufficient.287 Sometimes, however, suspension or termination is the more appropriate remedy. In short, the employer's action should stop the harassment and prevent it from recurring, which in turn will appease the complainant.288 The employer should also restore to the complainant any lost employment benefits or opportunities.289 Finally, the employer should keep the complainant informed of the progress of the investigation and the action taken in response.290

It is critical that in the course of investigating the complaint and imposing discipline on the harasser, the employer resist the urge to unreasonably focus the investigation on the complainant or to take any action against her that could be considered retaliatory.

VII. Conclusion

The law of retaliation in Massachusetts and the First Circuit is continually developing. Managing an employee who has complained of harassment or filed a charge of discrimination can prove difficult, particularly when the employee is simultaneously experiencing performance or disciplinary issues. Many employers fail to recognize the hidden dangers that can give rise to retaliation claims and the measures that can be taken to prevent such claims. Distributing strongly worded policies, training managers, and conducting careful and effective investigations, however, will reduce an employer's exposure to claims of retaliation in the workplace.

End Notes

1. EEOC, Charge Statistics FY 1992-FY 2001. During fiscal year 2001, aggrieved employees filed 22,257 retaliation charges, totaling 27.5% of the overall claims filed. Id.[back]

2. EEOC, Compliance Manual, § 8-I.A. (May 20, 1998). See also Douglas E. Ray, Title VII Retaliation Cases: Creating a New Protected Class, 58 U. Pitt. L. Rev. 405, 406 (Winter, 1997).[back]

3. Ray, supra note 2.[back]

4. See infra notes 213-18 and accompanying text (highlighting cases where retaliation claims have survived and resulted in substantial jury verdicts, despite absence of underlying discrimination). For example, on Oct. 2, 2002, a Massachusetts jury awarded a woman who was fired and subsequently sued by her former employer $2.1 million in damages. Massachusetts Lawyers Weekly, Oct. 7, 2002. See also infra notes 231-35 and accompanying text (discussing potential for liability by asserting counterclaims in response to employee lawsuits). News brief: Jury Awards $2M in Retaliation Case, 31 Mass. Law. Wkly., Oct. 7, 2002, at 190.[back]

5. While the article focuses on Massachusetts and First Circuit cases, it discusses federal cases from other circuits in order to provide guidance on several unsettled issues in the area of retaliation and highlight the split of authority on these issues.[back]

6. 42 U.S.C. § 2000e-3(a) (2003). [back]

7. 29 U.S.C. § 623(d) (2003). The Age Discrimination in Employment Act prohibits employers from discriminating against an employee who has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act." Id.[back]

8. 42 U.S.C. § 12203(a) (2003). The Americans With Disabilities Act ("ADA") provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act." Id. The Rehabilitation Act, the ADA's predecessor, also contains language prohibiting employers with federal financing or contracts from retaliating against employees. 29 U.S.C. § 794(d) (2003).[back]

9. 29 U.S.C. § 1140 (2003). Section 510 of the Employee Retirement Income Security Act makes it unlawful for any person to "discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan. . . . It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this Act. . . ." Id. [back]

10. 29 U.S.C. § 215(a)(3). The Fair Labor Standards Act prohibits any person from "discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." Id.[back]

11. 29 U.S.C. § 158 (2003). The National Labor Relations Act prohibits an employer engaged in commerce within the National Labor Relations Board's jurisdiction from retaliating against an employee for engaging in concerted protected activity or union organizing.[back]

12. 29 U.S.C. § 2654 (2003); 29 C.F.R. § 825.220(c) (2003). The Family and Medical Leave Act prohibits an "employer [] from discriminating against employees . . . who have used FMLA leave [or from using such] leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. . . ." Id.; D'Amico v. Compass Group USA, Inc., 198 F. Supp. 2d 18 (D. Mass. 2002).[back]

13. 42 U.S.C. § 2000e-3(a) (2003). [back]

14. Mass. Gen. Laws ch. 151B, § 4(4). [back]

15. Mass. Gen. Laws ch. 152, § 75B. Chapter 152 provides, in part: "[n]o employer . . . shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter. . . ." Id.[back]

16. Mass. Gen. Laws ch. 149, § 148A. Section 148A of chapter 149 provides that "no employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter." Id. It is unclear, however, whether a separate, private right of action for retaliation exists under this chapter. To the extent that an employer wrongfully terminates an employee for asserting her rights under the chapter, the employee would have a cause of action for wrongful termination in violation of public policy. Miller v. Trinity Oil Co., No. 97-03051, 1999 Mass. Super. LEXIS 156, at *11 (Mass. Super. Ct. April 2, 1999). Under this theory, the employer could be liable for terminating an employee for a reason that violates a clearly established public policy, such as the employee's act of asserting a legal right, doing what the law requires, or for refusing to disobey the law. Id. at 9, citing Upton v. JWP Businessland, 425 Mass. 756, 757 (1997); see also Clark v. South Middlesex Opportunity Council, Inc., No. CA 97-5530-F, 2000 Mass. Super. LEXIS 191, at *7-9 (Mass. Super. Ct. May 4, 2000) (holding that termination of employee for providing accurate housing numbers to state agencies, refusing to commit a federal violation regarding said numbers, and cooperating with the agencies' investigation of the employer would violate public policy). [back]

17. Mass. Gen. Laws ch. 151, § 19(1).[back]

18. Mass. Gen. Laws ch. 149, § 105B.[back]

19. Mass. Gen. Laws ch. 151B, § 4(4).[back]

20. Id. at § 4(4A); see also Bain v. City of Springfield, 424 Mass. 758, 765 (1997). But see Goguen v. Quality Plan Adm'rs, No. 97-5874, 2000 Mass. Super. LEXIS 40, at *18 (Mass. Super. Ct. Feb. 7, 2000).[back]

21. See Cheng v. IDEAssociates, Inc., No. 96-11718-PBS, 2000 U.S. Dist. LEXIS 10517, at *11 (D. Mass. 2000) (noting that the elements of a claim for retaliation under the Fair Labor Standards Act mirror those under Title VII); Welstead v. Sturdy Mem. Hosp., No. 99-0924-A, 2000 Mass. Super. LEXIS 701, at *5 (Mass. Super. Ct. Nov. 29, 2000) (stating that analysis of retaliation claim under worker's compensation statute parallels analysis under Chapter 151B).[back]

22. Ianetta v. Putnam Invs., Inc., No. 00-10385-JLT, 2002 U.S. Dist. LEXIS 3277, at *24 (D. Mass. 2002).[back]

23. Dodi v. The Putnam Cos., No. 95-2266, 1996 U.S. App. LEXIS 22177, at *18 (1st Cir. 1996).[back]

24. Lewis v. Gillette Co., 22 F.3d 22, 24-25 (1st Cir. 1994) (observing that Massachusetts retaliation law parallels federal law); Allder v. Daniel O'Connell's Sons, 20 F. Supp. 2d 210, 218 (D. Mass. 1998); Bain, 424 Mass. at 765.[back]

25. Kirk v. The Hitchcock Clinic, 261 F.3d 75, 79 (1st Cir. 2001) (quoting Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000)). See College-Town, Division of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 168-69 (1987) (ruling that employer's statement that "it has come to my attention that you are suing College-Town. . . . Here is your vacation, your severance pay or whatever, and good luck." constituted direct evidence of retaliation).[back]

26. Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64-65 (1st Cir. 2002). [back]

27. 490 U.S. 228 (1989).[back]

28. Weston-Smith, 282 F.3d at 64.[back]

29. Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring). A detailed discussion of cases involving direct evidence and the mixed motive analysis is beyond the scope of this article. [back]

30. 411 U.S. 792, 802-05 (1973). See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991) (noting applicability of McDonnell Douglas paradigm to retaliation cases), cert. denied, 504 U.S. 985 (1992); Szabo v. Trustees of Boston Univ., No. 96-10806-GAO, 1998 U.S. Dist. LEXIS 4104, at *8 (D. Mass. 1998) (describing application of burden-shifting framework in discrimination cases lacking direct evidence), aff'd without opinion, 181 F.3d 80 (1st Cir. 1998).[back]

31. Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1044-45 (D. Mass. 1995); see also Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 44 (1st Cir. 1999) (outlining three-part prima facie case required by federal anti-retaliation statutes, such as Title VII and the Family and Medical Leave Act).[back]

32. Simas, 170 F.3d at 44. [back]

33. 419 Mass. 356 (1995).[back]

34. Id. at 364. See also Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000) (describing prima facie burden).[back]

35. Tate, 419 Mass. at 359.[back]

36. Id. at 358-59.[back]

37. Id. at 364-65.[back]

38. Id.[back]

39. Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1045 (D. Mass. 1995). [back]

40. Id.; Hoffman v. Daka, Inc., No. 99-3496, 2000 Mass. Super. LEXIS 537, at *12-13 (Mass. Super. Ct. Oct. 30, 2000) (stressing that the employer's reorganization and budgetary constraints were legitimate reasons for the plaintiff's termination, which plaintiff failed to contradict).[back]

41. No. 00-10385-JLT, 2002 U.S. Dist. LEXIS 3277 (D. Mass. 2002).[back]

42. Id. at *27-28.[back]

43. Id. at *26-27. [back]

44. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 442-46 (1995) (reiterating the Massachusetts "pretext only" standard); see also Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). Further refining this standard, the Massachusetts Supreme Judicial Court announced in 2000 that a showing of pretext in a discrimination case permitted, but did not compel, the inference that the adverse employment action occurred because of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000).[back]

45. 434 Mass. 493, 508 (2001).[back]

46. Id.[back]

47. Id. at 504.[back]

48. Id. [back]

49. Id. at 508.[back]

50. Id. at 508. The state of the law in this area is developing and unclear, particularly in its application to retaliation claims. [back]

51. Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 7, 11 & n.18 (1998); MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996).[back]

52. Ray, supra note 2 at 409-10.[back]

53. Id. at 409; Charles A. Shanor, Preventing and Defending Against Retaliation Claims, SE 42 ALI-ABA Advanced Employment Law and Litigation 547, 553 (Dec. 2, 1999). See infra notes 58-80 and accompanying text (discussing participation clause).[back]

54. Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); see also Ray, supra note 2, at 410 (describing plaintiff's burden of proof under opposition clause). [back]

55. Ray, supra note 2, at 410. [back]

56. Tate v. Dep't of Mental Health, 419 Mass. 356, 364 (1995).[back]

57. Id. at 364-65.[back]

58. 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B, § 4(4). The plaintiff's request for a reasonable accommodation to his handicap constitutes participation for purposes of engaging in protected activity. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997). Additionally, the employee's act of retaining an attorney is considered protected activity. Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991), cert. denied, 501 U.S. 1218 (1991); Sellig v. Visiting Nurse & Cmty. Health, Inc., No. 98-0037, 1999 Mass. Super. LEXIS 243, at *18-20 (Mass. Super. Ct. June 10, 1999) (condemning employers that discharge employees simply because they consult with lawyers as violating public policy).[back]

59. See Goguen v. Quality Plan Adm'rs, No. 97-5874, 2000 Mass. Super. LEXIS 40, at *15 (Mass. Super. Ct. Feb. 7, 2000) (noting that filing complaint with Massachusetts Commission Against Discrimination constitutes protected activity).[back]

60. Blackie v. Maine, 75 F.3d 716, 723 (1st Cir. 1996).[back]

61. Ramos v. Roche Prods., Inc., 936 F.2d 43, 48-49 (1st Cir. 1991), cert. denied, Rossy v. Roche Prods., Inc., 502 U.S. 941 (1991).[back]

62. Edward A. Marshall, Excluding Participation in Internal Complaint Mechanisms from Absolute Retaliation Protection: Why Everyone, Including the Employer, Loses, 5 Employee Rts. & Emp. Pol. J. 549, 557-59 (2001) (noting that range of activities protected under participation clause is narrow and excludes filing internal complaints). Marshall acknowledges that courts are generally not willing to hold that engaging in internal complaint mechanisms alone constitutes protected participation. Id. at 560. But see Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (holding that participating in an employer's process of gathering information after an EEOC charge is filed qualified for participation clause protection). Note, however, that under the Fair Labor Standards Act, more courts are willing to find that internal complaints qualify as protected participation in order to effectuate the broad remedial purposes of the act. See, e.g., EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992); Crowley v. Pace Suburban Bus. Div., 938 F.2d 797, 798 (7th Cir. 1991); Love v. RE/MAX of America, Inc., 738 F.2d 797, 798 (7th Cir. 1991). See also Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41-45 (1st Cir. 1999) (noting split among the circuits concerning whether a written internal complaint constitutes protected activity under the FLSA), amended by 5 Wage and Hour Cas. 2d (BNA) 1024 (1st Cir. May 6, 1999). [back]

63. See EEOC v. Total Sys. Servs. Inc., 221 F.3d 1171, 1174 & n.2 (11th Cir. 2000), reh'g denied, 240 F.3d 899 (11th Cir. 2001); Shinwari v. Raytheon Aircraft Co., 16 F. Supp. 1308 (D. Kan. 1998); Brown v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999) (holding that employee's visit to employer's EEO counselor to explore her options did not constitute participation); Williams v. West, No. 98-2937, 1998 U.S. App. LEXIS 32653, at *10-11 (7th Cir. 1998) (deciding that employee who raised but failed to file internal sexual harassment complaints against co-workers was not protected by Title VII's anti-retaliation provisions); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989). [back]

64. No. 98-2937, 1998 U.S. App. LEXIS 32653 (7th Cir. 1998).[back]

65. Id. at *10-11.[back]

66. 178 F.3d 1002 (8th Cir. 1999).[back]

67. Id. at 1006.[back]

68. EEOC, supra note 2, at § 8-II.C.2. Note, however, that the EEOC does not require the participation in such external matters to be valid or reasonable. Id.[back]

69. 908 F. Supp. 1019 (D. Mass. 1995).[back]

70. Id. at 1044.[back]

71. 20 F. Supp. 2d 210 (D. Mass. 1998).[back]

72. Id. at 219.[back]

73. 173 F.3d 35 (1st Cir. 1999), amended by 5 Wage & Hour Cas. 2d (BNA) 1024 (1st Cir. May 6, 1999).[back]

74. Id. at 41-45.[back]

75. 942 F. Supp. 65 (D. Mass. 1996).[back]

76. Id. at 70.[back]

77. Id. at 70-72.[back]

78. 424 Mass. 758 (1997).[back]

79. Id. at 765.[back]

80. Id. at 765 n.4; see also Yung v. Revelation Bra Co., No. 95-1300-F, 1997 Mass. Super. LEXIS 352, at *3-4 (Mass. Super. Ct. July 7, 1997) (comparing anti-retaliation proscriptions of Chapter 151B and Title VII).[back]

81. Marshall, supra note 62 at 560-61.[back]

82. EEOC, supra note 2, at § 8-II.B.2.[back]

83. 149 F.3d 253 (4th Cir. 1998).[back]

84. Id. at 259.[back]

85. Hubbard v. Blue Cross Blue Shield Assoc., 1 F. Supp. 2d 867, 880-81 (N.D. Ill. 1998). But see Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3rd Cir. 1995) (requiring that employee must complain regarding discrimination specifically, rather then generalized unfair treatment).[back]

86. Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994).[back]

87. EEOC, supra note 2, at § 8-II.B.3.a.[back]

88. Centola v. Potter, 183 F. Supp. 2d 403, 412 (D. Mass. 2002) (stating that employee who complained of discrimination based on his sexual orientation due to sexual stereotyping prevalent in the workplace engaged in protected conduct). But see Ianetta v. Putnam Invs., Inc., 142 F. Supp. 2d 131, 135 (D. Mass. 2001) (indicating that complaining or raising issues concerning alleged sexual orientation discrimination alone would not constitute protected activity because sexual orientation discrimination is not prohibited by Title VII).[back]

89. 532 U.S. 268 (2001).[back]

90. Id. at 271.[back]

91. Id. at 269-70.[back]

92. Id. at 269.[back]

93. Id.[back]

94. Id. at 271.[back]

95. Clark County School District, 532 U.S. at 271.[back]

96. Bossi v. Town of Billerica, No. 01-0890, 2001 Mass. Super. LEXIS 561, at *15-16 (Mass. Super. Ct. Dec. 21, 2001) (noting that individual to whom plaintiff complained could not have reasonably believed that general allegations about offensive and abusive behavior from a co-worker amounted to sexual harassment). The Bossi court granted the employer summary judgment based on evidence that it suspended plaintiff due to allegations that she used town funds for personal purchases. Id. at 16; see also Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997).[back]

97. Locke v. Sales Consultants of Boston, Inc., No. 98-4081, 2001 Mass. Super. LEXIS 217, at *13-14 (Mass. Super. Ct. April 13, 2001) (holding that no reasonable person would conclude that the defendants had engaged in unlawful discrimination based on single incident of sexual harassment witnessed by the plaintiff). Noting that the plaintiff could not demonstrate that he had a good faith belief that the company was engaging in discrimination based on witnessing this one incident, this Massachusetts Superior Court judge did not specifically address whether this conduct would constitute actionable participation. Id. [back]

98. Pontremoli v. Spaulding Rehab. Hosp., 51 Mass. App. Ct. 622, 625-26 (2001). [back]

99. Hazel v. U.S. Postmaster Gen., 7 F.3d 1, 4 (1st Cir. 1993).[back]

100. Id. (quoting Hochstadt v. Worcester Found. For Experimental Biology, 545 F.2d 222, 233 (1st Cir. 1976)).[back]

101. Hochstadt, 545 F.2d at 231.[back]

102. 7 F.3d 1 (1st Cir. 1993).[back]

103. Id. at 4.[back]

104. LaRosa v. United Parcel Serv., Inc., 23 F. Supp. 2d 136, 151-52 (D. Mass. 1998) (concluding that refusing to perform one's duties is not protected activity). [back]

105. See Sahli v. Bull HN Info. Sys., Inc., No. 98-3372, 2001 Mass. Super. LEXIS 188, at *11-12 (Mass. Super. Ct. March 16, 2001) (stressing that plaintiff must allege adverse employment action rather than mere adverse action not related to the plaintiff's employment), aff'd, 437 Mass. 696 (2002).[back]

106. MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996) (citing Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir. 1994)).[back]

107. EEOC, supra note 2, at § 8-II.D.1.[back]

108. Horney v. Westfield Gage Co., 211 F. Supp. 2d 291, 316 (D. Mass. 2002) (citing Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 56 (1st Cir. 2000)).[back]

109. Gumbhir v. Curators of Univ. of Mo., 157 F.3d 1141, 1144 (8th Cir. 1998), cert. denied, 526 U.S. 1005 (1999); Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998).[back]

110. 104 F.3d 702 (5th Cir. 1997), cert. denied, 522 U.S. 932 (1997).[back]

111. Id. at 709.[back]

112. Id. at 703-04.[back]

113. Id. at 707.[back]

114. Id. at 708.[back]

115. Id. at 707 (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)).[back]

116. 122 F.3d 1142 (8th Cir. 1997), reh'g denied, 74 Fair Empl. Prac. Cas. (BNA) 1544 (8th Cir. Oct. 7, 1997).[back]

117. Id. at 1144-45.[back]

118. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999) (requiring proof of materially adverse change in terms and conditions of employment for adverse action); Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997) (rejecting retaliation claim based on employer's instruction of employees to ignore and spy on employee who engaged in protected activity), cert. denied, 522 U.S. 1116 (1998); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997); Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997) (stating employer's request that employee drop EEOC charge was not retaliatory because it did not constitute a materially adverse change in the terms and conditions of employment), cert. denied, 522 U.S. 997 (1997).[back]

119. 120 F.3d 1286 (3rd Cir. 1997).[back]

120. Id. at 1300.[back]

121. No. 97-9191, 1998 U.S. App. LEXIS 20181, at *11-12 (2nd Cir. 1998).[back]

122. Id.[back]

123. See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998) (stating that co-worker harassment can form the basis of a retaliation claim); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (concluding that Title VII retaliation extends to actions that fall short of ultimate employment decisions, such as scheduling conflicts, reprimands, a one day suspension, and soliciting negative evaluations); Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997) (noting that Title VII does not apply only to acts of retaliation that take the form of cognizable employment actions such as discharge or demotion), cert. denied, 523 U.S. 1122 (1998); Passer v. American Chem. Soc'y, 935 F.2d 322, 331 (D.C. Cir. 1991) (ruling that canceling a symposium in the employee's honor was sufficiently adverse to support a retaliation claim). The EEOC concurs with courts that apply this broader interpretation of the adverse action requirement. EEOC, supra note 2, at § 8-II.D.3. For a discussion on this split of authority, see Linda M. Glover, Comment, Title VII Section 704(a) Retaliation Claims: Turning a Blind Eye Toward Justice, 38 Hous. L. Rev. 577, 595-607 (Summer 2001).[back]

124. 93 F.3d 1327 (7th Cir. 1996).[back]

125. Id. at 1336.[back]

126. Id. at 1330.[back]

127. Id. at 1330-31.[back]

128. Id. at 1331.[back]

129. Id. at 1334-35.[back]

130. 152 F.3d 1253 (10th Cir. 1998).[back]

131. Id. at 1264-65. [back]

132. EEOC, supra note 2, at § 8-II.D.3.[back]

133. See, e.g., DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (holding that depriving employee of meaningful duties can constitute adverse action); Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (stressing that taking something from the employee such as significant responsibility can constitute adverse action); Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994)(noting demotions, disadvantageous transfers, negative job evaluations and toleration of harassment by co-workers can constitute adverse action). See also Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)(specifying that many things such as constant rudeness and conspicuous discriminatory acts could have an adverse effect upon employment). But see Wyse v. Summers, 100 F. Supp. 2d 69, 77 (D. Mass. 2000) (stating counseling plaintiff received for being late, which did not result in any tangible job consequences, was not adverse action); see also Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998) (holding increased amount of electronic messages to plaintiff, which contained onerous assignments and implicitly criticized his productivity, did not amount to adverse action). [back]

134. 221 F.3d 254 (1st Cir. 2000).[back]

135. Id. at 262.[back]

136. 75 F.3d 716 (1st Cir. 1996).[back]

137. Id. at 725.[back]

138. 190 F. Supp. 2d 105 (D. Mass. 2001).[back]

139. Id. at 117.[back]

140. No. 00-10115-GAO, 2002 U.S. Dist. LEXIS 1768 (D. Mass. 2002), aff'd, 316 F.3d 18 (1st Cir. 2002).[back]

141. Id. at *12.[back]

142. Ritchie v. Massachusetts State Police, No. 00-4604, 2001 Mass. Super. LEXIS 378, at *16 (Mass. Super. Ct. July 30, 2001) (holding neutral, non-negative employee evaluation report, which rated plaintiff lower than those previously issued, did not constitute adverse action); Cameron v. Massachusetts State Police, No. 00-4582, 2001 Mass. Super. LEXIS 287, at *12-13 (Mass. Super. Ct. May 29, 2001) (stating threat to transfer an employee, which was never carried out, was not adverse action); Oluleye v. Lotus Dev. Corp., No. 00-1102, 2001 Mass. Super. LEXIS 215, at *4 (Mass. Super. Ct. April 10, 2001) (stating that employer's action of not inviting plaintiff to meetings, not providing her with information, and scrutinizing her performance did not disadvantage her with respect to objective terms and conditions of employment); Daigle v. NECX, Inc., No. 99-1555-D, 2001 Mass. Super. LEXIS 403, at *15-16 (Mass. Super. Ct. Feb. 23, 2001) (noting plaintiff's supervisor's statement that she planned to begin tracking plaintiff's accounts after plaintiff allegedly opposed unlawful conduct under Chapter 151B did not constitute adverse action); Goguen v. Quality Plan Adm'rs, No. 97-5874, 2000 Mass. Super. LEXIS 40, at *17-19 (opining that claim that supervisor made plaintiff "feel like nothing," supervisor's non-materialized threat to make plaintiff drive long distances to another job site, and temporary transfer of plaintiff while investigating her sexual harassment complaint did not constitute adverse action); Dace v. Massachusetts, No. C99-01086, 1999 Mass. Super. LEXIS 555, at *7-9 (Mass. Super. Ct. Dec. 21, 1999) (concluding that non-supervisory colleague's questions as to plaintiff's membership on affirmative action committee did not amount to adverse action).[back]

143. No. 00-4604, 2001 Mass. Super. LEXIS 378, at *16 (Mass. Super. Ct. July 30, 2001).[back]

144. Id. at *16.[back]

145. No. 00-4582, 2001 Mass. Super. LEXIS 287 (Mass. Super. Ct. May 29, 2001).[back]

146. Id. at *12-13.[back]

147. Daigle, 2001 Mass. Super. LEXIS 403, at *15-16.[back]

148. Id. at 16.[back]

149. Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir. 1994).[back]

150. Fowler v. Labor Relations Comm'n, 56 Mass. App. Ct. 96, 100 (2002). [back]

151. Id.[back]

152. Id.[back]

153. Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). [back]

154. Coakley v. Agar Supply Co., No. CA98-5978, 2001 Mass. Super. LEXIS 318, at *18 (Mass. Super. Ct. July 5, 2001) (quoting MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996)).[back]

155. Ramos v. Roche Prods., Inc., 936 F.2d 43, 49 (1st Cir. 1991), cert. denied, Rossy v. Roche Prods, Inc., 502 U.S. 941 (1991).[back]

156. Clockedile v. New Hampshire Dep't of Corr., 245 F.3d 1, 6-7 (1st Cir. 2001); Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1046 (D. Mass. 1995) (noting that adverse actions were taken sharply during and immediately after plaintiff decided to pursue her complaints). See also McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (noting in dicta that short period between protected activity and adverse action sufficient to establish causation).[back]

157. Ruffino, 908 F. Supp. at 1046. See also Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir. 1994) (noting that one may establish causation by showing that the employer took adverse action shortly after becoming aware of the protected activity). [back]

158. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 166 (1st Cir. 1998).[back]

159. Saad v. Stanley St. Treatment and Res., Inc., No. 92-11434-DPW, 1994 U.S. Dist. LEXIS 20728, at *36-37, n.16 (D. Mass. 1994); Cheng v. IDEAssociates Inc., No. 96-11718-PBS, 2000 U.S. Dist. LEXIS 10517, at *14-15 (D. Mass. 2000).[back]

160. Cheng, 2000 U.S. Dist. LEXIS 10517, at *14-15 (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42-43 (5th Cir. 1992)).[back]

161. DeNovellis v. Shalala, 135 F.3d 58, 76 (1st Cir. 1998). [back]

162. Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 197 (1st Cir. 1987).[back]

163. Eregie v. The Boston Co., No. 92-1133J, 1994 Mass. Super. LEXIS 203, at *16 (Mass. Super. Ct. April 12, 1994) (denying summary judgment based on timing of actions of new supervisor, who had knowledge of the plaintiff's protected activity).[back]

164. See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57-58 (1st Cir. 2000) (awarding summary judgment based on lack of evidence other than the fact that the plaintiff was dismissed and had opposed employer's job fair profile); Coakley v. Agar Supply Co., No. CA 98-5978, 2001 Mass. Super. LEXIS 318, at *18-20 (Mass. Super. Ct. July 5, 2001) (emphasizing that mere fact that plaintiff had litigation pending against the company at the time of his discharge did not support inference of retaliation); Diaz v. Henry Lee Willis Cmty. Ctr., Inc., No. 97-1045-A, 1998 Mass. Super. LEXIS 572, at *8 (Mass. Super. Ct. Oct. 8, 1998) (declaring plaintiff's termination shortly following his workplace injury insufficient to establish causation). See also MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996).[back]

165. Rosa v. Polaroid Corp., No. 96-3235, 1998 Mass. Super. LEXIS 397, at *18 (Mass. Super. Ct. Jan. 6, 1998) (citing MacCormack, 423 Mass. at 662 n.11).[back]

166. LeClerc v. Interstate Distrib. Div. of Hudson News Co., No. 97-02008, 2000 Mass. Super. LEXIS 607, at *22-23 (Mass. Super. Ct. March 20, 2000). Moreover, if the alleged adverse actions occur prior to the protected activity, plaintiff's claim will fail. Smith v. Bell Atlantic, No. CA 98-2828, 2001 Mass. Super. LEXIS 256, at *24-25 (Mass. Super. Ct. July 18, 2001); Adams v. Marine USA, Inc., No. 00-0129A, 2001 Mass. Super. LEXIS 31, at *9-10 (Mass. Super. Ct. Jan. 3, 2001) (stating plaintiff's failure to provide evidence that he filed his worker's compensation claim prior to his dismissal was fatal to his retaliation claim). [back]

167. Goncalves v. The Stop & Shop Supermarket Co., No. 00-3325, 2001 Mass. Super. LEXIS 643, at *16-17 (Mass. Super. Ct. Dec. 27, 2001).[back]

168. 55 Mass. App. Ct. 11 (2002).[back]

169. Id. at 5-6.[back]

170. Id.[back]

171. Moos v. Hampshire Coll., No. 97-30262-FHF, 1999 U.S. Dist. LEXIS 8694, at *17-18 (D. Mass. 1999). [back]

172. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (stating that nine month period too lengthy to support retaliation claim), cert. denied, 504 U.S. 985 (1992); Oliver v. Digital Equip. Corp., 846 F.2d 103, 110-11 (1st Cir. 1988) (holding 2-1/2 year period too long a gap to support causation); see also Costello v. Massachusetts Rehab. Comm'n, 982 F. Supp. 61, 66-67 (D. Mass. 1997) (holding 11-year interval between protected activity and adverse action too long a period to support an inference of retaliation); Goncalves, 2001 Mass. Super. LEXIS 643, at *17 (concluding 19-month gap between plaintiff's filing of his worker's compensation claim and his application for reemployment, which was rejected, negated his ability to prove retaliation).[back]

173. Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997); Mathis v. Perry, 996 F. Supp. 503 (E.D. Va. 1997).[back]

174. Szabo v. Trustees of Boston Univ., No. 96-10806-GAO, 1998 U.S. Dist. LEXIS 4104, at *10-11 (D. Mass. 1998), aff'd without opinion, 181 F.3d 80 (1st Cir. 1998).[back]

175. Costello, 982 F. Supp. at 67. See also Carozza v. Blue Cross & Blue Shield of Mass., Inc., No. CA 00-1249-F, 2001 Mass. Super. LEXIS 506, *35-37 (Mass. Super. Ct. Nov. 16, 2001) (noting evidence that defendant did not fire other employees, who had not initiated sexual harassment complaints and had engaged in conduct similar to the plaintiff, was helpful to plaintiff in avoiding summary judgment).[back]

176. Costello, 982 F. Supp. at 67.[back]

177. 982 F. Supp. 61 (D. Mass. 1997).[back]

178. Id. at 67.[back]

179. No. 95-2266, 1996 U.S. App. LEXIS 22177 (1st Cir. 1996).[back]

180. Id. at *20-21.[back]

181. Id. at *2-3.[back]

182. Id.[back]

183. Id. at *20-21. See Cheng v. IDEAssociates, Inc., No. 96-11718-PBS, 2000 U.S. Dist. LEXIS 10517, at *16-17 (D. Mass. 2000) (holding that plaintiff can show a causal connection by introducing the requisite proof that her performance reviews, which were consistently positive, became negative as a result of the protected activity).[back]

184. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).[back]

185. Id.[back]

186. Id. at 339.[back]

187. Id. at 340.[back]

188. Id. at 345. [back]

189. Id.[back]

190. EEOC, supra note 2, at § II.D.2.[back]

191. 89 F.3d 1224 (5th Cir. 1996), reh'g denied, 105 F.3d 658 (5th Cir. 1996), cert. denied, 520 U.S. 1229 (1997).[back]

192. Id. at 1226-27.[back]

193. Clark v. R.J. Reynolds Tobacco Co., No. 79-7, 27 Fair Empl. Prac. Cas. (BNA) 1628 (E.D. La. 1982).[back]

194. EEOC, supra note 2, at § II.C.3.[back]

195. Charland v. Muzi Motors, Inc., 417 Mass. 580, 583-85 (1994) (citing Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988)).[back]

196. Charland, 417 Mass. at 583-85.[back]

197. Borase v. M/A Com, Inc., 906 F. Supp. 65, 66-67 (D. Mass. 1995) (noting that every circuit which has confronted the issue has determined that a retaliation charge does not necessarily have to be the subject of a separate administrative claim); Edwin v. Blenwood Assoc., Inc., 9 F. Supp. 2d 70, 73-75 (D. Mass. 1998) (stating when the same set of facts supported plaintiff's retaliation claim and hostile working environment claim, which was the subject of the MCAD charge, plaintiff need not file with the agency).[back]

198. Clockedile v. New Hampshire Dep't of Corr., 245 F.3d 1, 4 (1st Cir. 2001).[back]

199. 840 F.2d 132 (1st Cir. 1988), overruled by Clockedile, 245 F.3d at 4.[back]

200. Clockedile, 245 F.3d at 5-6. [back]

201. Smith v. Mitre Corp., 949 F. Supp. 943, 948 (D. Mass. 1997).[back]

202. Carter v. Comm'r of Corr., 43 Mass. App. Ct. 212, 218 (1997); see also Smith, 949 F. Supp. at 948 (concluding that the Supreme Judicial Court would adopt the approach of not requiring plaintiff to bring a separate charge of retaliation before the agency when the claim arises out of an earlier charge filed with the agency).[back]

203. Francisque v. Mass. Fin. Servs. Co., No. CV99-5565A, 2000 Mass. Super. LEXIS 305, at *7-11 (Mass. Super. Ct. May 10, 2000) (following reasoning of federal decisions in determining that it was unnecessary for plaintiff to file separate retaliation charge with MCAD when the claim arose out of the earlier charge). But see Cathey v. Fallon Clinic, Inc., No. 97-00988A, 2001 Mass. Super. LEXIS 237, at *13-15 (Mass. Super. Ct. July 2, 2001) (dismissing claim of retaliation against former employer for withdrawing severance offer because plaintiff failed to file retaliation charge with the MCAD). Note that if the plaintiff is alleging retaliatory conduct that occurred prior to the time she filed her original charge, she must assert the retaliation in the MCAD charge. Cullinane v. Mass. Inst. of Tech., No. 95-0570, 1997 Mass. Super. LEXIS 120, at *17-18 (Mass. Super. Ct. June 12, 1997) (holding that plaintiff's claim that she was terminated for a retaliatory reason must be included in the original MCAD charge and distinguishing cases where plaintiffs are not required to file a separate charge for retaliation that occurs subsequent to the filing of the original charge).[back]

204. Mass. Gen. Laws ch. 151B, § 5.[back]

205. Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 658 (1997).[back]

206. Chapin v. University of Mass. at Lowell, 977 F. Supp. 72, 76 (D. Mass. 1997) (stating that EEOC charge complaining of failure of management and officials overseeing University police department to remedy the sexual harassment complained of sufficiently identified police chief as a potential defendant) (quoting Chatman v. Gentle Dental Ctr., 973 F. Supp. 228, 235 (D. Mass. 1997)).[back]

207. 973 F. Supp. 228 (D. Mass. 1997).[back]

208. Id. at 235.[back]

209. 46 Mass. App. Ct. 372, 374-75 (1999).[back]

210. 977 F. Supp. 72 (D. Mass. 1997).[back]

211. Id. at 76.[back]

212. See, e.g., Turley v. Sec. Integration, Inc., No. 98-5399, 2001 Mass. Super. LEXIS 566, at *22 (Mass. Super. Ct. Dec. 4, 2001); Pardo v. Gen. Hosp. Corp., No. 98-2174, 2001 Mass. Super. LEXIS 594, at *9-10 (Mass. Super. Ct. Oct. 29, 2001) (specifying that charge that puts party's conduct at issue and provides him fair notice permits him to be named as a defendant in a subsequent court action); Avitable v. W.M. Gulliksen Mfg. Co., No. 00-3522A, 2001 Mass. Super. LEXIS 65, at *7 (Mass. Super. Ct. Feb. 1, 2001) (noting individual supervisor identified in the particulars section of the charge received fair notice of the claim and could be sued in Superior Court).[back]

213. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), petition for cert. filed, (July 26, 1999); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121-22 (2000) (noting that jury can find retaliation even if there was no discrimination). [back]

214. 424 Mass. 758 (1997).[back]

215. Id. at 765 & n.4 (stating that court may find liability for retaliation under Chapter 151B absent discrimination). The Bain jury found in favor of the employee on her retaliation claim but for the employer on the discrimination claim. Id.; see also Igartua v. City of Newton, No. 98-4910-F, 2000 Mass. Super. LEXIS 19, at *2 n.2 (Mass. Super. Ct. Jan. 20, 2000) (stating that a finding of liability on a retaliation claim is not conditioned on a finding of liability on the underlying claim of discrimination). [back]

216. Bain, 424 Mass. at 765-69.[back]

217. 859 F. Supp. 33 (D. Mass. 1993).[back]

218. Id. at 40; see also Flanagan-Uusitalo v. Pharma Group, Inc., 190 F. Supp. 2d 105, 116 (D. Mass. 2001) (noting that jury may find impermissible retaliation even if there was no discrimination).[back]

219. See supra notes 53, 59-60 and accompanying text (detailing illegality of retaliating against employees who file discrimination claims).[back]

220. Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 225-32 (1st Cir. 1976).[back]

221. 437 Mass. 696 (2002).[back]

222. Id. at 704-05.[back]

223. Id. at 697-98.[back]

224. Id.[back]

225. Id. at 698.[back]

226. Id. at 700-01, 704-05.[back]

227. Sahli v. Bull HN Info. Sys., Inc., 437 Mass. 696, 702 (2002).[back]

228. Id. at 705-07.[back]

229. Id. at 707. [back]

230. Id. at 704-05.[back]

231. No. CA 3-96-CV-1580-R, 1997 U.S. Dist. LEXIS 23451 (N.D. Tex. Oct 21, 1997). [back]

232. Id. at *15.[back]

233. Id.[back]

234. 860 F. Supp. 256 (D. Md. 1994), aff'd, 74 F.3d 1459 (4th Cir. 1996), overruled on other grounds by Adams v. Moore Bus. Forms, Inc., 224 F.3d 324 (4th Cir. 2000).[back]

235. Id. at 269.[back]

236. No. 94-14-CIV-ORL-19, 1995 U.S. Dist. LEXIS 9902 (M.D. Fla. Mar. 23, 1995).[back]

237. Id. at *3; see also EEOC v. Levi Strauss & Co., 515 F. Supp. 640, 643-44 (N.D. Ill. 1981) (holding that good faith defamation suit filed in an attempt to rehabilitate an employer's tarnished reputation does not necessarily violate Title VII).[back]

238. See Zimmerman v. Direct Fed. Credit Union, 121 F. Supp. 2d 133, 146-47 (D. Mass. 2000) (stating $400,000 punitive damages award against supervisor for retaliation was not excessive), aff'd, 262 F.3d 70 (1st Cir. 2001).[back]

239. Internicola v. Local 507, Transport Workers' Union, No. 95-BEM-2388 (MCAD 2002).[back]

240. Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 79 (1st Cir. 2001).[back]

241. Id. at 80-85; see supra note 4 and accompanying text (describing 2002 jury verdict for employee on retaliation claim, $1.5M of which was punitive damages).[back]

242. Doe v. Clinton, No. 94-2538, 1996 Mass. Super. LEXIS 482, at *4-5 (Mass. Super. Ct. Jan. 11, 1996).[back]

243. 42 U.S.C. § 1981(b) - (c) (2003); Mass. Gen. Laws ch. 151B, § 9; Dimarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001).[back]

244. Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 17 (1st Cir. 1999), modified, 79 Fair Empl. Prac. Cas. (BNA) 1737 (1st Cir. June 11, 1999), and cert. denied, Wal-Mart Stores, Inc. v. Danco, Inc., 528 U.S. 1105 (2000) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).[back]

245. Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 498 (2000), review denied, 433 Mass. 1101 (2002).[back]

246. Zimmerman, 262 F.3d at 84 (citing Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1 (1998)). The United States Supreme Court has developed three general guideposts in determining the propriety of punitive damages awards, including the degree of reprehensibility of the defendant's conduct, the ratio between the compensatory and punitive damages, and the difference between the punitive damages award and the civil penalties imposed for similar conduct. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574 (1996); see also Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826 (1997) (recommending courts review punitive damages awards to ensure that they are reasonable and not simply a criminal penalty).[back]

247. Bain, 424 Mass. at 767; see also Provencher v. CVS Pharmacy, 145 F.3d 5, 11-12 (1st Cir. 1998) (upholding punitive damages award, accompanied by back pay award but lack of compensatory damages for emotional distress).[back]

248. 262 F.3d 70 (1st Cir. 2001).[back]

249. Id. at 82-85.[back]

250. Schuler v. Polaroid Corp., No. 86-0890-Z, 1987 U.S. Dist. LEXIS 8348, at *9 (D. Mass. 1987).[back]

251. Id.[back]

252. Id. [back]

253. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).[back]

254. Myrick v. GTE Main St., Inc., 73 F. Supp. 2d 94 (D. Mass. 1999).[back]

255. College-Town Division of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 165 (1987). [back]

256. 182 F.3d 629 (8th Cir. 1999).[back]

257. Id. at 636 n.7.[back]

258. 162 F.3d 235 (3rd Cir. 1998).[back]

259. Id. at 236. [back]

260. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 (3rd Cir. 1997). See also Metcalf v. Metropolitan Life, Inc., 961 F. Supp. 1536, 1544 (D. Utah 1997) (noting that unpleasant sexual harassment investigation of plaintiffs by another employee and hostility from co-workers did not amount to adverse action). [back]

261. Eng v. American Pie, Inc., 20 MDLR 53, 57 (1998).[back]

262. Pulido v. Massachusetts Dep't of Correction, 20 MDLR 49, 52 (1998).[back]

263. Shanor, supra note 53, at 608.[back]

264. Id.[back]

265. Id.[back]

266. Id.[back]

267. Id.[back]

268. See supra note 255, notes and accompanying text (discussing employer's obligations in responding to sexual harassment complaints).[back]

269. EEOC, Guidelines on Discrimination Because of Sex, 29 C.F.R. pt. 1604; MCAD, Sexual Harassment in the Workplace Guidelines (2002). Prompt and thorough investigations can also be crucial in avoiding liability for the underlying discrimination or harassment. Sarin v. Raytheon Co., 905 F. Supp. 49, 52-53 (D. Mass. 1995) (finding that acting promptly and effectively to remedy complaints of sexual harassment may enable employer to avoid liability); see also Rounds v. Massachusetts Dep't of Correction, 19 M.D.L.R. 90 (1997) (noting that prison management not liable when response to harassment complaints was immediate, effective, and reasonable).[back]

270. MCAD, supra note 269, at § VI.[back]

271. Carmon v. Lubrizol Corp., 17 F.3d 791 (5th Cir. 1994); Wendorf v. Metropolitan Life Ins. Co., 47 Empl. Prac. Dec. ¶ 38,316 (E.D.N.Y. 1988).[back]

272. Bennett v. New York City Dep't of Corr., 705 F. Supp. 979, 988 (S.D.N.Y. 1989).[back]

273. Pyne v. Procacci Bros. Sales Corp., No. 96-7314, 1997 U.S. Dist. LEXIS 15672, at *10 (E.D. Pa. 1997).[back]

274. MCAD, supra note 269,at § VI.D.2.[back]

275. See id. (recommending removal of supervisory authority as a potential interim measure); Shanor, supra note 53, at 608.[back]

276. MCAD, supra note 269, at § VI.D.2.[back]

277. Id.[back]

278. Id.[back]

279. Id.[back]

280. Id.[back]

281. Id. at § VI.D.1.[back]

282. Id. at § VI.B.[back]

283. Id.[back]

284. Ann M. Henry, Comment, Employer and Employee Reasonableness Regarding Retaliation Under the Ellerth/Faragher Affirmative Defense, 1999 U. Chi. Legal F. 553, 582-83 (1999).[back]

285. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).[back]

286. Saad v. Stanley St. Treatment & Res., Inc., No. 92-11434-DPW, 1994 U.S. Dist. LEXIS 20728, at *34-35 (D. Mass. 1994). Other considerations in determining the appropriate discipline include the harasser's employment history, the discipline imposed as the result of other investigations, and any progressive discipline policy generally followed by the employer. [back]

287. Id.; see also Knabe v. The Boury Corp., 114 F.3d 407 (3rd Cir. 1997).[back]

288. MCAD, supra note 269, at § VI.F.[back]

289. Id.[back]

290. Id. at § VI.D.1.[back]

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