Retaliation Articles

Title VII Retaliation Claims Become Harder to Prove

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            The U.S. Supreme Court has made it harder for employees to win retaliation claims under Title VII.  Retaliation is defined as taking an adverse employment action against someone because they opposed a discriminatory act (“opposition”), or filed a complaint or assisted in a legal proceeding related to a discriminatory act (“participation”).  Now, instead of having to prove an employee’s opposition or participation was a “motivating factor” in the employer’s decision, an employee must prove that “but for” their opposition or participation, the adverse action would not have occurred.  University of Tex. Southwestern Med. Ctr. v. Nassar.

But For Standard Applied to ADA Retaliation Claims

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          In a case of first impression, the U.S. District Court for Connecticut applied the “but-for” causation standard to ADA retaliation claims. Saviano v. Town of Westport, Case No. 3:04-CV-522(RNC) (D. Conn. Sept. 30, 2011). This is the first case following the U.S. Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. where the Connecticut District Court was asked to determine if the Gross “but-for” holding applied to ADA retaliation cases. It answered in the affirmative.

Zone of Interest Concept Applied to Title VII Retaliation Claims

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            In a significant case issued last year, the U.S. Supreme Court expanded the right to file Title VII retaliation claims to employees, based on their relationship to other employees who directly engaged in protected activity. Thompson v. North American Stainless, LP, Case No. 09-291 (U.S. January 24, 2011). Historically, only employees who engaged in protected activity were thought to have the right to file retaliation claims.

Employees Participating in Internal Investigations Protected from Retaliation

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            The U.S. Supreme Court recently held that employees who answer management questions during a Title VII related internal investigation are protected from retaliation under the Act’s “opposition clause.” Crawford v. Metropolitan Government of Nashville, No. 06-1595 (Jan. 26, 2009).

Retaliation Standard Under Title VII

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            The U.S. Supreme Court recently made it easier for employees to claim retaliation under the Civil Rights Act of 1964. Burlington Northern &. Santa Fe Railway Co. v. White, 2006 U.S. LEXIS 4895 (June 22, 2006). The Court stated that conduct may be considered retaliatory if a reasonable employee would consider the employer’s actions to be materially adverse, even if those actions do not affect any terms or conditions of employment.


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