Title VII Prima Facie Cases 2019, Volume 1
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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss the elements of a Title VII prima facie case. Volume 1 covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.
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Title VII forbids (i) employment practices that discriminate against an employee on the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2, and (ii) retaliation against an employee for opposing adverse actions that she reasonably suspects to be unlawful under Title VII, 42 U.S.C. § 2000e-3; Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Boyer-Liberto, 786 F.3d at 276-77, 281. We refer to the former as the anti-discrimination provision and the latter as the anti-retaliation provision.
The scope of Title VII's anti-retaliation provision, § 2000e-3, is broader than the anti-discrimination provision in at least two respects. First, as the Supreme Court has held, "the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm" because "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Burlington, 548 U.S. at 63, 67, 126 S.Ct. 2405. Accordingly, retaliatory actions need not "affect the terms and conditions of employment" to come within Title VII's prohibition. Id. at 64, 126 S.Ct. 2405. However, retaliatory actions do have to be "materially adverse" — such that they "might have dissuaded a reasonable worker" from engaging in protected activity. Id. at 68, 126 S.Ct. 2405; see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011) (reaffirming same). Second, and more importantly for this case, this Court, en banc, has held that the anti-retaliation provision protects employees even when they complain of actions that are not actually unlawful under Title VII. Boyer-Liberto, 786 F.3d at 282. Instead, complaining employees are protected if, at the time of their complaint, they "have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress." Id. (citation omitted). Because "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses," Burlington, 548 U.S. at 67, 126 S.Ct. 2405, the greater breadth of the anti-retaliation provision ensures that employees feel free to come forward with their grievances, even when a violation is not yet conclusive based on what one witness might know. See Boyer-Liberto, 786 F.3d at 283.
A plaintiff may prove that an employer took action with discriminatory or retaliatory intent through direct evidence or through the burden-shifting framework of McDonnell Douglas Corp. v. Green. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under the burden-shifting framework, the plaintiff must first establish a prima facie case of retaliation by showing: "(1) she engaged in a protected activity; (2) the employer acted adversely against her; and (3) there was a causal connection between the protected activity and the asserted adverse action." See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)). After the prima facie showing is made, "[t]he burden then shifts to the [employer] to show that its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason." Foster, 787 F.3d at 250. "If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating that the employer's purported nonretaliatory reasons were not its true reasons, but were a pretext for discrimination." Id. (internal quotation marks and citation omitted).
Strothers v. City of Laurel, Maryland, 895 F. 3d 317 (4th Cir. 2018)