Courts often look to the passage of time between the protected activity (i.e., complaining about discrimination) and the adverse action (i.e., termination) in considering claims of retaliation. The generally accepted rule is that a close enough time gap can raise an inference of retaliation. What about the opposite notion – the idea that a lengthy passage of time between protected activity and adverse action can refute a claim of retaliation? The Seventh Circuit recently addressed this issue in Malin v. Hospira. There, the plaintiff complained of sexual harassment. Three years later she was denied a promotion. The lower court held that the passage of time was enough to kill her case. But the Seventh Circuit reversed.
According to the court, a lengthy passage of time does not automatically bar a plaintiff’s claim of retaliation. While it may certainly weaken such a claim, a fact-specific inquiry will be appropriate (meaning employers won’t be winning motions for summary judgment on such claims and instead will have to disprove them in court). In Malin, there was plenty of evidence that suggested that a pattern of retaliation transpired ever since the plaintiff lodged the harassment complaint.
What does this case mean for employers? Retaliation claims are scary propositions. Take precautions to guard against them, starting with a strong anti-retaliation policy and training for all supervisors.