Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. Several weeks ago I told my employer that a supervisor had been sexually harassing me, and today I was fired. Does this count as unlawful retaliation, even though some time has passed since I complained?
A. Anti-discrimination laws such as Title VII of the Civil Rights Act prohibit employers from retaliating against employees who assert their rights by complaining to the employer, filing a charge with the Equal Employment Opportunity Commission, or filing a lawsuit in federal court. This does not mean, however, that once an employee complains or files a charge or a lawsuit, he or she becomes immune to adverse employment actions. If an employee performs poorly after the filing, for example, the employer can fire or demote him or her.
In order for a retaliation to avoid dismissal, the employee, with the help of his or her attorney, must be able to prove three things: 1. the employee engaged in an activity protected by a law such as Title VII, which covers sexual harassment; 2. the employer subjected the employee to an adverse action; and 3. “the protected activity was causally connected to the adverse action,” the U.S. District Court for the Eastern District of Virginia noted in Chapman v. Geithner (2012).
The amount of time between the protected activity and adverse action will greatly influence a court’s determination as to whether there is a causal connection. “As temporal proximity fades, the inference of causal connection weakens,” the Eastern District court noted in Sturdivant v. Geren (2009). The question then becomes: How much time passed is too much?
In Miles v. Dell, Inc. (2005), the 4th U.S. Circuit Court of Appeals noted that a delay of three years between the protected activity and adverse employment action “negated the inference of causation,” and the same was true for a delay lasting 13 months. Even a three-to-four month delay is too long, according to Sturdivant. But a causal link can exist when the delay is 10 weeks, the Eastern District court noted in Pinkett v. Apex Communications Corp. (2009). Even more, the court added a causal link can exist for longer periods – from seven months to one year – when there is evidence of “ongoing discriminatory animus.”
Employees who believe their employers have subjected them to unlawful retaliation for engaging in protected activities under laws such as Title VII should immediately contact an employment law attorney.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C. Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.
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