Personal Journal May Be Protected Activity

By Alyssa L. Levy In Fischer v. Sentry Ins. A Mutual Co., an employee kept a log of when she felt sexually harassed or discriminated against by her employer. The log went missing shortly before the company fired her. In her retaliation complaint, the employee essentially asked the Court to infer her employer was aware […]

SCOTUS Limits Common Title VII Defense

By: John Alan Doran The U.S. Supreme Court ruled today that a plaintiff’s failure to properly perfect an EEOC charge is a “prudential” defense to a Title VII claim, which may be waived by the employer’s failure to promptly raise the defense in litigation.  Fort Bend County, Texas v. Davis (June 3, 2019).  Davis filed […]

Through Good Times and Bad: Husband Has Retaliation Claim Based on Assisting Spouse’s Pregnancy Discrimination Claim

By Chance Hill A federal district court in Kansas denied a car dealership’s motion for summary judgment regarding a former sales manager’s retaliation claims.  Specifically, the sales manager contended that the company fired him because he became emotional in a meeting with HR over his wife’s charge of pregnancy discrimination against the dealership.  The sales manager […]

♫ Let It Go, Let it Go ♫

By Beth Ann Lennon When most people think of employment law problems arising from the use of social media, they envision irresponsible employees taking to the internet to rant about their employer. However, a recent case out of Oregon shows that employers can cause just as much trouble as their employees when they decide to overshare […]

4 Retaliation Lessons from Comey’s Firing

By John Alan Doran Regardless of your political views, most will agree that President Trump’s firing of F.B.I. Director James Comey was fraught with potential controversy.  Employers can find at least four takeaways from what was, in short, a retaliation “how not to do it” checklist. First, regardless of the reason for a proposed termination, […]

Suspension Not Materially Adverse

By Bill Wright A retaliation claim under Title VII requires proof of a “materially adverse action.”  Short of discharge, what could be more materially adverse than a suspension?  The Fifth Circuit Court recently ruled that even a suspension is not always materially adverse.  The plaintiff will have to show that the suspension caused “physical, emotional, […]

Retaliation Encyclopedia

By Andy Volin The EEOC just released proposed enforcement guidance on retaliation, and at 73 pages, it has everything you ever wanted to know on the topic.  This is the first time since 1998 that the EEOC has updated its guidance on this topic, and the EEOC is soliciting public comment until February 24, 2016. […]

Protection for (Some) HR Managers

By Andy Volin Like most employment statutes, the Fair Labor Standards Act (“FLSA”) prohibits retaliation against employees who file complaints. The Supreme Court ruled in 2011 that this protection even extends to oral complaints at work. Recently, the Ninth Circuit decided that even a management employee in HR could assert retaliation based on a report […]

Curing Cat’s-Paw

By Bill Wright In a Title VII retaliation claim, a plaintiff has to prove protected conduct was the “but-for” cause of the materially adverse action. Can a plaintiff prove “but-for” causation relying on the supposed retaliatory animus of someone other than the decision maker? Yes, but not if the decision-maker acts independently of the so-called […]

Bad Timing, but No Punitives

By Andy Volin Firing someone right after they complain of discrimination can result in a retaliation claim, even if the employer thinks it has a good reason unrelated to the complaint. The Tenth Circuit just upheld a jury verdict in this situation, despite the employer’s assertion that it discharged the plaintiff for submitting fake letters […]