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Retaliation Claim Can Succeed Even if Underlying Religious Discrimination Claim Fails

Retaliation claims for discrimination of any kind, including religious discrimination, can be difficult to prove. Often the form of retaliation can be subtle, but effective. In any case, it is illegal.

Ann Shafer was hired by the American University in Cairo (AUC) in 2005 as a tenure track assistant professor and art program director in the department of performing and visual arts (PVA). She did well and her three-year contract was renewed through the 2010-11 academic year; her second contract stated that if she had not secured tenure by the time it terminated, she could not stay at AUD. She received grants and a semester off to allow her to develop her portfolio to seek tenure.

Soon after starting at AUC, Shafer converted to Islam. She decided to perform the hajj pilgrimage during the 2009-2010 school year, tacking that period of leave on to her time off to develop her portfolio. She did not tell the department chair or the dean of the school of her motivation for seeking that leave. Both were supportive and noted that a leave of absence would help her secure tenure; AUC stopped the clock on her contract term and the deadline to secure tenure. Shafer spent the 2009-10 year in Saudi Arabia, fulfilling her religious duties and working as a visiting professor. She also spent time at Harvard, doing research for publications.

Although she had been away for a year and her school had hired a new dean (who was also a professor in her program), Shafer missed the start of the September 2010 semester due to Ramadan. She did not clear her plans with the new dean but simply informed the PVA chair on the first day of classes. The new dean was unhappy and sent an email to the then-Provost complaining about her "poor judgment." He noted that many AUC faculty members were Muslim and practiced their religion while also satisfying their faculty duties.

Shafer's first meeting with the dean, which included the PVA chair, did not go well. Though the meeting was pleasant, the dean commented that he had been getting to know Cairo and had amused himself by "taking a lot [of] photographs of 'veiled cars.'" He later explained that he was referring to the Egyptian practice of covering parked cars to keep dust off. Shafer was offended, believing the remark to be a slur against Muslim women, like her, who wear a hijab. While she did not interpret the remark to be an attempt to intimidate or harass her, she believed it revealed the dean's bias.

In March 2011, Shafer filed a complaint with the senate grievance committee claiming the dean discriminated against her based on her identity as a white Muslim woman. The committee decided in the dean's favor and she appealed. Meanwhile, she sought to have the dean and others removed from her tenure process and asked for an extension of the deadline to apply. The university refused most of her requests but offered to exclude the dean.

In September 2011, faculty convened to determine membership of faculty committees and the direction for the art program. At the start of the meeting, the dean announced it would be recorded. Shafer objected and the dean allegedly yelled that the meeting was being recorded on the advice of counsel because she was suing the school. Shafer's successor as director ran the meeting. Although Shafer volunteered for committees, her replacement said she would not be appointed so she could focus on her tenure portfolio. Though Shafer was ultimately allowed to serve on certain committees, no one invited her to meetings.

Having failed to reach agreement on a tenure process she found acceptable, Shafer never applied for tenure and did not return to the university after her contract expired in August 2012. She filed suit alleging religious discrimination, retaliation, and hostile work environment under Title VII, the New York State Human Rights Law and the New York City Human Rights Law.

The New York Federal Court threw out the religious discrimination and hostile work environment claims, but held that the retaliation claim could proceed to trial. In its view, a reasonable jury could find that the dean's decision (even on the advice of counsel) to record a PVA faculty meeting constituted a "materially adverse action" in that it might dissuade a reasonable worker from making or supporting a charge of discrimination. And by attempting to record the meeting expressly because Shafer filed an EEOC complaint, the dean "sent a clear signal" to Shafer and other faculty members present that discrimination complaints would be met with hostility and would turn the complaining faculty member into a pariah who could not be trusted to faithfully report what happened even in a pedestrian faculty meeting. The court also noted that excluding a professor from committees that shape a department's curriculum could be sufficiently punitive to dissuade a reasonable person from engaging in protected activity.

The takeaway: Even if you don't have enough evidence to support a religious discrimination claim, you may still have a claim for retaliation if your employer takes actions adversely affecting your job just because you are complaining about discrimination.

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