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Is This Retaliation?

Is This Retaliation?

by | Jan 19, 2022 | Retaliation

One question we face a lot in litigating retaliation claims is whether an employee has suffered “an adverse employment action.”  While deciding what kinds of things can be adverse employment actions seems like it should be easy, courts still struggle with it.

In a recent Eleventh Circuit case, Smith v. City of Pelham, the Eleventh Circuit explained how a supervisor’s action could be retaliatory—even when the employee did not initially know about it.

Here, Jennifer Smith filed a sex discrimination complaint against her supervisor. The City told the supervisor of the sex discrimination complaint and reminded him that the supervisor was not to retaliate against Smith.

Alas, that warning fell on deaf ears. Within a week, the supervisor tasked another employee with conducting a forensic search of Smith’s computer. The search turned up an iPhone backup on her work computer. In the photos in this backup, there were nude photographs. The investigation also showed that Smith had used her work computer during working hours for things related to a second job.

The City fired Smith because the nude photos in the iPhone backup on her work computer were considered “conduct unbecoming.”

Although Smith had no idea that the supervisor ordered this forensic search of her computer after filing her complaint, Smith knew that she had been fired within a month of filing her sex discrimination complaint. She sued for retaliation.

The Supreme Court tells us that retaliation exists when an employee suffers a materially adverse employment action. Retaliation is material if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

The district court dismissed Smith’s retaliation claim. It reasoned that the forensic search could not be a materially adverse action because Smith did not know the supervisor had someone conduct the forensic investigation. The district court noted, “a reasonable worker could not be dissuaded from making a charge of discrimination due to an investigation of which she had no knowledge.”

Fortunately, the Eleventh Circuit recognized this for the illogical nonsense it is. It pointed out that to hold that an action cannot be adverse if the employee is unaware of that action is without legal support.

Smith was fired because of that forensic investigation—instigated by her supervisor immediately following her sex discrimination complaint. That search then caused her to be fired—and no one could dispute that the termination is an adverse employment action.

This outcome should have been common sense. Sadly, it was not. However, the Eleventh Circuit set the record straight here. It found that even though the search might have resulted in the discovery of some employee misconduct, that did not excuse that the investigation was itself retaliatory.

Retaliation continues to occur in all forms, shapes, and flavors. Most courts recognize it when they see it. Here, the Court of Appeals had to catch the district court’s error and set the record straight.

Equal Pay: The Rate of Pay

Equal Pay: The Rate of Pay

by | Dec 27, 2021 | Discrimination, Equal Pay

How do you measure equal pay?  Is it the employee’s base salary?  Or is it the employee’s total compensation?

A recent Fourth Circuit case, Sempowich v. Tactile Systems Technology, Inc., answered this question. In Sempowich, a female employee and her male peer were both paid a base salary and also earned commission income based on sales. The male employee was paid a higher base salary in 2015, 2016, and 2017 (even though he had less seniority and lower performance review scores). However, Ms. Sempowich’s total earnings in 2016 and 2017 were more than the male employee’s because she received more in sales commissions.

When she sued, the district court used her “total wages” as the metric for determining wage discrimination under the Equal Pay Act. Because Ms. Sempowich had earned more in total wages in those two years, the court dismissed her Equal Pay Act claim.

Ms. Sempowich appealed and argued that the proper measurement was the “rate” at which her employer paid her—the base salary.

The Fourth Circuit agreed—based on the text of the Equal Pay Act. The statute says an employer may not “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex.” 

This statutory language says nothing about “total wages.” Instead, it focuses on the wage rate. Here, Ms. Sempowich’s base salary was lower than her male peer’s base salary. So, she was paid at a rate lower than her male peer. Because of that, the Fourth Circuit found that the district court erred in dismissing her claim.

To drive home this conclusion, the Fourth Circuit used a hypothetical to demonstrate why total pay cannot be the proper point of comparison. Assume a company pays a woman $10 per hour and a man $20 per hour. If total wages is the measure of pay, the company would not violate the Equal Pay Act if the woman earned more than the male employee—even though she would have to work twice as many hours to do so. A woman should not have to work twice as many hours to make the same money.

That makes sense. A company cannot say it pays its employees equally if one employee has to work twice as many hours to make the same money. Likewise, that a female employee earned more in commissions than her male peer should not mean that her employer did not discriminate against her by paying her a base salary lower than her male peer.

This seems to be a common-sense conclusion. Unfortunately, it was not to a district judge in North Carolina. Fortunately, the Fourth Circuit caught and fixed this error.

Pay issues can be tricky, but the rate of pay is the starting point for any pay discrimination analysis—not total pay. It is good to have clarity on that point.