The federal court of appeals for the Fourth Circuit has reaffirmed that employees can prevail on retaliation claims even when their underlying discrimination claims have failed. In an unpublished per curiam opinion, the court of appeals dismissed the plaintiffs’ claims under the Equal Pay Act, but remanded one plaintiff’s retaliation claim back to the district court in Roanoke after finding that the trial court had erred when it entered judgment in favor of the employer.
In Maron, et al. v. Virginia Polytechnic Institute and State University (no. 12-1146), Shana Maron and Greta Hanes sued Virginia Tech, claiming that the university paid female employees lower salaries than male employees who held similar positions and performed the same work. The plaintiffs claimed that women were paid 15% less than men in the Office of University Development; Virginia Tech presented evidence that several males in similar fundraising positions were actually paid less than the plaintiffs, and that salaries were based on a variety of factors (including experience level, possessing advanced degrees, etc.).
Following a jury trial, the jury returned verdicts in favor of Maron and Hanes on their wage claims, and awarded Maron an additional $61,000 on her retaliation claim. After considering Virginia Tech’s post-trial motions, however, the district court set aside the jury’s verdicts, entering judgment as a matter of law on Maron’s retaliation claim and granting a new trial on the two wage claims (which Virginia Tech subsequently won). The plaintiffs appealed, challenging the district court’s decision to set aside the jury verdicts. In particular, Maron contested the ruling that she had failed to present sufficient evidence from which a jury could reasonably conclude that Virginia Tech had retaliated against her for her complaint of alleged pay disparity.
Title VII of the Civil Rights Act of 1964 prohibits discrimination against any employee who “has opposed any . . . unlawful employment practice.” 42 U.S.C. § 2000e-3(a). In order to prove retaliation, Maron was required to show that she: (1) engaged in a protected activity; (2) her employer acted in a way that was “materially adverse” to her; and (3) the protected activity and the adverse action were causally connected. Virginia Tech argued that, at most, Maron had suffered “petty slights,” rather than “materially adverse” employment actions.
The court of appeals focused on statements that Maron’s manager had made to her after Maron had first voiced her concerns about unequal pay — namely, that Maron needed to “be invisible” and “stop pursuing” her claims, or else her “career” would be “ruined,” etc. While these veiled threats to terminate one’s employment generally do not rise to the level needed to bring a discrimination claim, they can be sufficient to support a retaliation claim. This is because in a retaliation case, the standard is slightly lower: the court looks to whether or not the adverse action (in this case, the manager’s threats) might dissuade another employee from complaining about discrimination in the future.
The plaintiffs were not as successful with respect to their EPA claims, however. Under the EPA, a plaintiff must prove: (1) that the employer pays different wages to employees of opposite sexes; (2) that the employees hold jobs that require equal skill, effort, and responsibility; and (3) that such jobs are performed under similar working conditions. The burden then shifts to the defendant to demonstrate that the wage disparity was based on one or more of the permissible factors listed in the statute.
Virginia Tech had presented evidence at the first trial that the differences in salary were based on a variety of “gender neutral” factors, including the other employees’ education, previous work experience, and prior compensation. All the university had to do was show that it was “more likely than not” that factors other than gender were used to determine the employees’ salaries; the district court decided that Virginia Tech had done so, and the appellate court agreed.
This case illustrates how an employer can be liable for unlawful retaliation against an employee who complains about alleged discrimination, even if the employee’s discrimination claim is completely unsuccessful. Courts want to ensure that employees aren’t discouraged from coming forward and reporting discriminatory behavior — so employers would be well advised to tread carefully when a complaint of discrimination is made. As this case shows, even the slightest negative reaction to a weak discrimination complaint can create liability under federal law.