Typically, if a woman is being sexually harassed and she reports it, she is at risk of retaliation. This can occur when the harassing supervisor learns that the woman reported him for sexual harassment and the company thereafter takes an adverse employment action against her, such as demoting her, failing to promote her and/or terminating her. I was involved in a case where a female manager complained about the manager of an automobile dealership making sexual comments about her breasts. In response, the employer hired a younger male to ultimately replace her.
The Opposition and Participation Clauses as Prohibiting Retaliation
Under Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), it provides as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, …because he has opposed any practice made an unlawful employment practice by this title [42 U.S.C. §§ 2000e to 2000e-17], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title [42 U.S.C. §§ 2000e to 2000e-17].
The first part of that section, which is known as the ‘opposition clause’ states that it is an unlawful employment practice to discriminate against an employee because he has opposed any practice made an unlawful employment practice by this title. This simply means you cannot be retaliated against because you’ve opposed sexual harassment.
The second part of that, which is known as the ‘participation clause’ states that it is an unlawful employment practice to “discriminate” against an employee “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”
It is important to show that the protected conduct engaged in by the employee is the reason that some adverse employment action occurred. In other words, there has to be a causal connection between the employee complaining about discrimination and/or participating in some investigation and an adverse employment action taken against the employee for doing so. If the employee reports sexual harassment, and then, a year later, the employer retaliates by firing her, the employer will argue that there was no relationship between the reporting and the firing. In Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997), a retaliatory termination occurred one year after the protected action. See id. at 177. Throughout the intervening year, however, there were numerous circumstances that suggested termination might occur, including statements that the plaintiff was off the management track and that she should start looking for another job. See id. at 178.