Most school principals and administrators are aware of the various federal employment statutes that prohibit discrimination against teachers and other school personnel concerning their terms and conditions of employment. Those same administrators, however, may be less familiar with the antiretaliation provisions that almost always accompany federal antidiscrimination laws. These provisions may render school districts liable for engaging in retaliatory action against school personnel who have engaged in conduct designed to protect their rights under federal antidiscrimination law. Retaliation claims may provide a greater source of liability for school districts than the underlying discrimination claims themselves.
Proof of Violation of Retaliation Provisions
The legal elements of a retaliation claim:
- The employee must have engaged in protected activity, i.e., by filing a discrimination claim under an employer—provided or bargained-for grievance provision with the Equal Employment Opportunity Commission (EEOC) or with an equivalent state agency.
- The employer must have engaged in conduct that a reasonable employee would consider materially adverse, i.e., that would dissuade a reasonable employee from engaging in protected activity.
- There must be a causal connection between the employee’s protected activity and the employer’s materially adverse conduct.
Although this proof structure was enunciated by the U.S. Supreme Court in a retaliation case under Title VII, it has since been applied by a number of courts to other retaliation provisions.
Litigated Cases in the K–12 Setting
Title VII
Title VII prohibits employers from engaging in retaliatory conduct against employees and others who engage in protected activity to enforce Title VII’s prohibitions on discrimination based on race, gender, religion, or other protected categories. One court has characterized Title VII’s retaliation provisions as “liberal and plaintiff-friendly.” For instance, an African-American public school teacher’s employment contract was not renewed by a school board after he complained internally to his supervisors about being subject to race discrimination by one of his co-employees (a protected activity). The 5th Circuit Court of Appeals (Texas, Louisiana, and Mississippi) held that there were genuine issues of fact on the causation aspect of his retaliation claim that entitled him to a jury trial. Courts also have recognized Title VII retaliation claims brought by a third party with a close familial relationship with a school employee or applicant, when that latter individual engaged in protected activity to complain about discrimination under Title VII.
Title IX
School personnel are also protected from retaliation after they voice concerns about gender inequity in schools. In one case, a high school teacher, who was also the girls’ basketball coach, highlighted the inequities that existed in funding, equipment, and facilities between the boys’ and girls’ teams. After making these complaints, he was removed from his coaching position. He sued under Title IX; the U.S. Supreme Court found that an employee could pursue a private cause of action for retaliation even though he was not a direct victim of the discrimination.
Americans With Disabilities Act
The ADA prohibits retaliation by an employer in response to an employee engaging in a protected activity seeking to enforce rights granted by the ADA. In one case, a middle school teacher who was diagnosed with various disabilities filed a claim with the EEOC for disability discrimination and failure to accommodate. After the school district and teacher settled the claim, the principal noticed that the teacher was not engaging students in meaningful instruction; however, the teacher did not change her behavior. Parents also complained that the teacher was unprofessional in her interactions with them and gave inappropriate assignments. The school district then terminated the teacher for insubordination, among other reasons. The teacher filed suit under the ADA, alleging retaliation, as well as other claims. A federal district court in Indiana found that the teacher failed to demonstrate that she was performing her job duties appropriately or that she had been treated less favorably than other similarly situated employees. Summary judgment was granted in favor of the school district on all claims, including her retaliation claim. In contrast, courts have found and concluded that teachers have engaged in protected activity—and may not be subjected to retaliation for doing so—where they requested accommodation for themselves from a school district and lodged a complaint with a school board when the accommodation was not granted.
Age Discrimination in Employment
The Age Discrimination in Employment Act (ADEA) prohibits retaliation as well. In one illustrative case, a teacher who had been employed by the district for 25 years claimed that she had been harassed because of her age after she was put on a plan of assistance for commentary that she made in class. After she filed a report with the EEOC, she claimed that she was put on a second plan of assistance and received a negative evaluation. She then filed an age discrimination and retaliation lawsuit under the ADEA. The court observed that her second plan of assistance was initiated only 2.5 months after she filed the EEOC complaint. Thus, there were questions of fact raised that precluded summary judgment in favor of the school district.
Family and Medical Leave Act
The FMLA likewise prohibits retaliation against an employee who exercises his or her right to family-related leave under the provisions of the federal family leave statute. Thus, a New Jersey federal district court allowed an FMLA retaliation claim to go forward when a school district retaliated against a teacher by terminating her employment after she utilized FMLA leave. However, a federal district court in Pennsylvania dismissed a retaliation claim against a school district where a library employee did not ask for FMLA leave or object to any practice made unlawful by the FMLA. The employee alleged that he was retaliated against when he was forced to retire after taking a short medical leave, which he had argued violated the FMLA, despite its never having been requested or granted. School districts will not be liable for retaliation where the employee requesting leave was not eligible for FMLA leave at both the time of the request and the time the leave would be taken.
John Rumel, JD, is a professor in the College of Law at the University of Idaho in Boise. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University. She has published widely on school legal matters and is the president-elect of the Education Law Association.
Lessons for Principals and Administrators
- Principals should be trained about what constitutes a protected activity and how to effectively respond when such issues arise.
- Schools should have comprehensive policies in place that prohibit retaliation.
- If a teacher files a retaliation complaint, a neutral third party should promptly investigate it, and the district should follow up with the teacher.
- If an employee underperforms, the district should carefully document what has occurred. Just because the employee engaged in a protected activity does not mean that the employee can refuse to perform assigned job duties.