The€Retaliation€Conundrum

The Retaliation C

B. Glenn George, The Unive
Darrell R. VanDeusen, Kollm
Richard A. Weitzner, The Ge

Conundrum

ersity of Arizona
man & Saucier
eorge Washington University

Retaliation.

• EEOC -- almost 100,000
Retaliation was the #1 a

• Burlington N. & S.F. Ry. v
adverse action)

• Crawford v. Metro Gov’t
applies to witness interv

• Thompson v. N. Am. Stai
“zone of interest” protec

• Kasten v. Saint-Gobain (2
complaint” includes oral

Get Some!

charges filed in 2010 --
allegation
v. White (2006) (materially

’t (2009)(opposition clause
views)
inless (2011)(applies
ction)
2011)(FLSA’s “filed a
l expression)

What is Retalia

•Protected Activity + Ma
+ Causal Connection =

•Courts use the McDonn
test: prima facie case,
discriminatory reason,

•No retaliation regardle
says.

–CBOCS West v. Humphr
–Gomez-Perez v. Potter (

ation Anyway?

aterially Adverse Action
Retaliation.
nell-Douglas three part
, legitimate non-
, and pretext.
ess of what the statute

ries (2008 ) (Section 1981)
(2008) (Federal ADEA)

What is Prote

•Crawford Question: op

– Hatmaker v. Memorial Med
denied (3/7/11) (“participa

•A connection to legal p

– Smith v. Int. Paper (8th 2008

•Timing of the “activity”

– Clark Co. v. Breeden (2001)

•Good Faith, reasonable

– See, e.g., Aman v. Cort Furn

ected Activity?

pposition v. participation

d. Ctr., (7th Cir. 2009), cert.
ation” requires outside action)

protection required

8)(not a workplace civility law)

” is important

)(charge, not RTS)

e belief requirement

n. (3d Cir. 1996)

What is “Mater

• Burlington asks: is it action
reasonable worker from m

• “Petty slights and minor a
• Threat of termination alon

– EEOC v. Chrysler Grp. (E.D.

• Broadcasting EEO claim at

– Mogenhan v. Napolitano (D

• Internal process ends whe

– AAUP v. PSU (Or. Ct. App. 2

rially Adverse”?

n that “dissuades a
making… a charge”
annoyances” not actionable.
ne gets past MFSJ

Wis. 2011)

t work can be chilling

D.C. Cir. 2010)

en EEOC charge filed

2010)(CBA provision ok)

What is a Causa

• Temporal Proximity – Bree

– Timing alone usually does n
– EEOC view: years later is su
– Circuit view: fewer than thr

• Loudermilk v. Best Pallet (7th
complaint gets case to jury)

• Balancing time and other
relationship to the protect

– Did manager know of P.A.?
– Did good and bad things ha

al Connection?

eden’s “very close” rule

not get a case past MFSJ
ufficiently close
ree months mostly

h Cir. 2011) (fired same day as

evidence to find a
ted activity

?
appen to employee after P.A.?

Hot Topic: “But For” or

• Price Waterhouse (1989) l
VII mixed motive.

– Doesn’t apply to ADEA. Gr

• Applying mixed motive to

– Smith v. Xerox Corp. (5th Cir
– Gibson v. City of Louisville (

• Different standards under

– See, e.g., Ruffin Hotel v. Ga

• Take away: Could this mea
situated”? Take a hard loo

“A Motivating Factor”?

leads to 1991 CRA and Title

ross v. FBL (2009).

retaliation claims?

r. 2010)
(6th Cir. 2003)

r state law?

asper, No. 24 (CSA Md. 3/21/11)

an the end of “similarly
ok at your facts.

Hot Topic: Cat

• Staub v. Proctor Hosp. (20

– Decisionmaker unbiased, b
“singular influence” of bias

– Violation if there is discrim
is proximate cause of the u

• Applied to ADEA in Simmo
(10th 6/2/11)

– Mixing “but for” and “cat’s

• Take away: Courts will ap

t’s Paw Theory

011) (USERRA)

but animus imputed because of
sed non-decisionmaker.
minatory motivation and the act
ultimate employment action.

ons v. Sykes Enters., Inc.

s paw” court holds for Employer

pply Cat’s Paw everywhere

Hot Topic: Thom

•Thompson holds that p
interest” have the righ

•How many degrees of s
employer protection?

•Applied to father/son r
Houston (5th Cir. 5/12/1

•Take away: Review of
adverse employment a

mpson’s Reach

persons in the “zone of
ht to sue under Title VII.
separation get an

relationship in Zamora v.
11)
relationships before an
action is essential.

Title IX

•Limited to sex discrimin
•Covers students, as we

extents to benefits bey
context
•Retaliation protection
Birmingham Bd. of Edu
•Analyzed much like Tit

X Issues

nation issues
ell as employees, and
yond the employment

implied (Jackson v.
ucation, 2005)
le VII retaliation claims

Title IX

•Protection for the com
victim

–E.g., Coach advocating
treatment of female ath

•Protection for students
benefits

–E.g., Coach limits playin
–E.g., Professor grades h

X Issues

mplainant who is not the

for better funding or
hletes

s covers “educational”

ng time
harshly

Best Pr

• Updated EEO Policy specif
as now defined

• Training all employees in E
• Regular review of supervis
• Assessment of “similarly s
• Don’t play ostrich – comp

employee from legitimate
• Use an independent group

adverse employment actio

ractices

fically addresses retaliation

EEO rights and obligations
sor conduct by HR
situated” employees
plaining does not insulate an
e discipline
p to consider whether an
on is appropriate

Best Pr

Advising the University w
Title IX complaint is rec

•Is there an immediate n
employee or student fr

•Instructions to supervis
treatment/retaliation w
and once it is conclude

•Significant decisions th
should be cleared with

ractices

when a discrimination or
ceived:

need to remove the
rom the environment?
sor/instructor/coach about
while investigation pending
ed (outcome irrelevant)
hat impact complainant
counsel

Responding to Re

•Was there knowledge o
•Was there temporal pr
•Was the claim made in
•Was an effort made to

would not occur?
•Does the story make se
•Consider mediation wh

etaliation Claims

of protected activity?
roximity?
n good faith?
o ensure retaliation

ense?
hen you have bad facts.

Hypothe

•Jane complains about p
and discrimination by h
College assigns anothe
employee to conduct h
supervisor still has inpu
to employees who don

•Has the College done “

etical #1

perceived harassment
her supervisor. The
er management
her evaluation. The
ut. This doesn’t happen
n’t complain.
“good” or “bad”?

Hypothe

•Fred comes in late or c
and Mondays. His sup
this up and you’ll be fir
HR that he’s being trea
because he has told th
talking to him about re

•What’s the best strateg
Fred?

etical #2

calls in sick on Fridays
pervisor tells him “keep
red.” Fred complains to
ated badly and it’s
he supervisor to stop
eligious stuff.
gy for dealing with

Hypothe

•Rebecca Brown is a PhD
Biochemistry and Dr. S
Rebecca Brown filed a
complaint against him
to dinner made her un
conclusion of the inves
of no harassment), Dr.
he is no longer comfor
supervisor.

etical #3

D student in
Smith is her advisor.

sexual harassment
after several invitations
ncomfortable. At the
stigation (with a finding
Smith tells Rebecca that
rtable being her

Hypothe

•Jack Tripp, a history pro
tenure review and con
with mediocre teachin
marginal publication re
of his time at the Unive
claims of race discrimin
the professors in his de
the dean, and the prov
have been investigated

etical #4

ofessor, is undergoing
nsidered a “close” case
ng evaluations and a
ecord. Over the course
ersity, Jack has filed
nation against several of
epartment, the chair,
vost. All complaints
d and dismissed.

Hypothe

•Lydia Anderson has be
women’s softball team
with losing seasons for
During that time she h
several occasions that
team has better faciliti
recruiting budget than
University has decided
Anderson’s contract.

etical #5

een the coach of the
m for the past four years,
r the last three years.
has complained on

the men’s baseball
ies and a larger
n women’s softball. The
d not to renew Coach

Quest

tions?