Retaliation cases often turn on timing, but this one shows that even years after the fact, employers can still be on the hook. Add in a secretly recorded “smoking gun” conversation, and you have a recipe for a costly settlement.
TL;DR: The EEOC announced a $350,000 settlement with two Arkansas healthcare entities accused of firing a physician assistant in retaliation for her role in a sexual harassment investigation. The case shows that retaliation protections apply to anyone who participates in such investigations, that liability can extend even years after the protected activity, and that recordings of workplace conversations can be decisive.
📰Read the EEOC’s press release.
A Long Fuse: How the Case Unfolded
A physician assistant participated in a hospital’s sexual harassment investigation back in 2019. Years later, in 2022, she was asked to resign, and when she refused, she was fired.
The court’s summary judgment opinion highlights that she secretly recorded the meeting where her supervisor linked the termination to her role in reporting the earlier harassment. Although the supervisor later testified that he exaggerated or fabricated statements to pressure her into resigning, the recording was still enough to create factual disputes for trial. With that evidence in play, the EEOC pushed forward, and the case ended in a six-figure settlement.
Participation in an Investigation = Protected Activity
The EEOC makes clear that participating in a workplace investigation — whether by reporting harassment, providing information, or supporting a colleague — is protected under Title VII. Employers cannot lawfully punish an employee for cooperating in such an investigation. Even indirect involvement, like corroborating a coworker’s account, can qualify.
Timing Isn’t Everything
Employers sometimes think retaliation claims lose strength if the adverse action comes months (or even years) after the protected activity. Not so. The EEOC notes that “suspicious timing” can be evidence of retaliation, but timing alone is not the only test. Other evidence, like incriminating remarks or shifting explanations, can carry the day even when the events are years apart. This case drives home that retaliation liability does not expire simply because time has passed.
The Smoking Gun Recording
The EEOC guidance highlights that direct evidence, such as verbal statements tying an adverse action to protected activity, is powerful proof of retaliation. Here, a recorded conversation linked the termination to the employee’s role in a prior harassment investigation. Even though the decisionmaker later recanted, the Court concluded that the recording created genuine issues of fact, keeping the claim alive until settlement. Not only that, but comments made “in jest” or for other reasons can still be used as evidence of retaliatory motive.
Employer Takeaways
- Expect recordings. Smartphones make it easy for employees to capture conversations. Train managers to choose words carefully and assume anything said could one day be evidence.
- Do not rely on time alone. A retaliation claim can survive even with years between the protected activity and the adverse action if there is other supporting evidence.
- Protect participants. Make sure anti-retaliation policies are crystal clear: anyone who participates in an internal investigation is protected from reprisal.
Remember this…
Retaliation claims can have a long shelf life, and a stray remark, especially one caught on tape, can keep them alive. Employers that dismiss protected activity as old news risk costly reminders from the EEOC.