May 24, 2021

For How Long is Protected Activity Protected?

An employee sues for unlawful retaliation under Title VII of the Civil Rights Act when he was fired three months after reporting that he was unlawfully harassed. After three months, absent any other evidence inferring a connection between the two events, is there still a reasonable inference that his report was the impetus for his firing? If not, what about two months?  If so, what about three years later? For how long does protected activity remain protected?

To answer these questions in this case, the 4th U.S. Circuit Court of Appeals started with the easy example. It previously held that three years was too long a period of time to infer a causal connection between the protected activity and the adverse employment action.  Next, it looked to other courts within the 4th Circuit. Some had found a period of three months “insufficient to infer a causal relationship without other evidence to infer a causal link.”  The 4th Circuit itself had shortened that to two months finding, “a lapse of two months between the protected activity and the adverse action is sufficiently long so as to weaken significantly the inference of causation.”

Take away. How can we practically use this information?  A proactive practice before taking any adverse employment action, like firing an employee, is to ask if there have been any recent incidents that were out of the ordinary, such as expressing any concerns, complaints, medical issues, work-related injuries, etc.  If the answer is, “Yes,” that does not mean you cannot proceed as planned. It does give you the opportunity to pause and ensure that you can clearly demonstrate that there is (1) a legitimate business reason for your action, such as unsatisfactory work performance, conduct, etc.; and (2) there is no evidence to infer such a connection between the two events, such as an emails, texts or other communications that imply a threat to the employee for filing a complaint or taking time off from work.

Lesson #2. This plaintiff also sued for same-sex harassment after he complained to three people, including the HR Manager…who was married to the CEO! Click here for that story!