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Total Articles: 63

Performance Evaluations: A Lesson on Documentation

Cases turn on the evidence. In the case of an employment discrimination or retaliation claim, the key may lie in the employee file maintained by the employer. One common piece of documentation created and maintained by many employers is performance evaluations. In Walker v. Verizon, a federal district court in Pennsylvania ruled on a case illustrating how important documentation can be in defending these claims.

The Not-So-Elusive 12(b)(6) Dismissal: Fifth Circuit Shoots Down Retaliation Claim Based on Single Text Message

The Fifth Circuit Court of Appeals recently affirmed the dismissal of a Title VII retaliation claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim where the plaintiff premised her retaliation claim on her earlier filing of an internal complaint of harassment based on a single allegedly offensive text message. The plaintiff’s internal complaint did not constitute protected activity sufficient to give rise to a retaliation claim because she could not have reasonably believed that receipt of a singular text message violated any law. Taliaferro v. Lone Star Implementation and Electronic Corporation, No. 16-51152 (June 9, 2017).

eLABORate: Nearly $2 Million Settlement in EEOC Lawsuit Highlights the Danger of Retaliation Claims

The Equal Employment Opportunity Commission (“EEOC”) has announced a $1.95 million settlement of retaliation claims made against the Chicago-based American Dental Association, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). The large dollar settlement underscores the risk employers face from such claims, and the value of having anti-retaliation policies in place. It also highlights the need to provide proper training to allow supervisors to recognize and address the circumstances leading to such claims.

Third Circuit Substitutes “Likely Reason” for “But For” at Summary Judgment Stage of Retaliation Case

In Carvalho-Grevious v. Delaware State University, No. 15-3521 (March 21, 2017), the Third Circuit Court of Appeals addressed an important evidentiary question: What evidence must a plaintiff adduce as part of a prima facie case of retaliation to survive a motion for summary judgment?

No Longer Giving Your Employee a “Warm Welcome” or saying “Good Morning”? Court Rules that Could be Evidence of Retaliation

A recent decision from a federal court in New York serves as a reminder to employers in South Carolina and North Carolina of just how difficult an employee’s allegations of retaliation can be to challenge, and how employers successfully can defend themselves against a discrimination claim—only to lose on the retaliation claim based on the same facts.

An Employer’s Horror Story For Friday The 13th: Retaliation Claim Survives 13-Year Gap

January 2017 is one of those rare months including a Friday the 13th, which might bring to mind a horror movie where a seemingly vanquished killer somehow rises to his feet – once again! – to wreak havoc on his stunned victims. Just like an undead specter rising from the grave long after you think it’s been killed off, an employer recently faced a retaliation claim despite the fact that a 13-year gap existed between the alleged protected activity and the adverse action.

Employers Be Careful Who You Believe When it is a Case of “He Said She Said”

In Vasquez v. Empress Ambulance Service, Inc., the federal Second Circuit Court of Appeals, held that an employee’s retaliatory intent may be imputed to an employer when the employer’s negligence gives effect to the employee’s retaliatory animus and adversely effects the victim. In essence, the Second Circuit extended the “cat’s paw theory” to cover discriminatory animus of a rank and file employee to the employer’s negligent actions.

Recent Enforcement Guidance provides insight into EEOC’s assessment of retaliation claims.

Retaliation claims are asserted in nearly half of the charges received by the Equal Employment Opportunity Commission (EEOC), according to its Chair, Jenny Yang, and now comprise the most frequently alleged basis of discrimination. On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. The guidance, which replaces the EEOC’s 1998 Compliance Manual section on retaliation, addresses retaliation issues under the federal statutes enforced by the EEOC, which include:

Updated EEOC Retaliation Guidance Suggests Scrutiny for Internal Investigation Practices

The Equal Employment Opportunity Commission takes an expansive position on protection given to persons who make internal complaints about discrimination in bad faith in updated guidance on retaliation law.

EEOC Guidelines Provide a Confusing Roadmap to Investigating Retaliation Claims

Employers have been warned time and time again – retaliation claims are on the rise. With the number of these claims climbing, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Final Enforcement Guidance on Retaliation and Related Issues, which are guidelines for EEOC investigators to use in investigating retaliation claims. This is the first time in nearly two decades that the Commission has updated these guidelines.1

EEOC Issues New Enforcement Guidance Regarding Retaliation Claims

Executive Summary: The EEOC has issued its final Enforcement Guidance regarding retaliation claims. The Enforcement Guidance emphasizes the agency’s broad interpretation of the protections afforded to employees who participate in EEO proceedings or complain about discriminatory practices.

The EEOC’s New Wide-Reaching Retaliation Guidance: What Should Employers Do Now?

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced the release of its long awaited Enforcement Guidance on Retaliation and Related Issues, replacing Section 8 of the EEOC Compliance Menu published in 1998. The guidance, which is accompanied by a companion Small Business Fact Sheet, sets forth the EEOC’s expansive analysis of retaliation, which is now the most frequently asserted basis of discrimination in all sectors.

eLABORate: EEOC Issues Employers New Enforcement Guidelines on Retaliation

Nearly half of all claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) address allegations of retaliation. Retaliation occurs when an employer takes a materially adverse employment action against an employee for engaging in protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) or any of the other federal anti-discrimination laws administered by the EEOC. Generally, protected activity consists of either filing an EEOC Charge of Discrimination or opposing unlawful employment actions.

EEOC Releases Final Enforcement Guidance on Retaliation and Related Issues

In the spring, we notified you that the U.S. Equal Employment Opportunity Commission (EEOC) proposed changes to its guidance on workplace retaliation. The EEOC recently released its final enforcement guidance, which replaces its 1998 Compliance Manual section on retaliation.

10 Things You Need To Know About EEOC’s New Retaliation Guidance

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues. The document is a helpful tool for employers when navigating the often-treacherous retaliation road, and will be used by agency investigators, plaintiffs’ attorneys, and courts as a guidepost when examining employer actions. Here are 10 things you need to know about the guidance in order to stay up to speed.

Despite Confounding Interference and Retaliation Claims, Conn. Federal Court Allows EEOC Case to Proceed

Do employers possess the fundamental right to communicate with current or former employees to inform them about (1) a current or former employee’s filing of a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and (2) the EEOC’s subsequent request for information about those current or former employees as potential witnesses in the case?

eLABORate: Fifth Circuit Disagrees with EEOC, Applies "Reasonable Belief" Standard to Witness Statement in Company Investigation

There is a uniform rule in the federal court system: an employer may not retaliate against an employee for reporting what the employee “reasonably believes” to be a violation of federal anti-discrimination law.

Claims and Recoveries Up at EEOC in 2015, Retaliation Tops Charges

The number of charges filed with the U.S. Equal Employment Opportunity Commission rose in the Commission’s last fiscal year, and the amount of money the agency recovered through administrative enforcement and litigation rose sharply in 2015 over 2014. (The fiscal year runs from October 1 to September 30.)

Fisher & Phillips Offers Comments On EEOC's Proposed Retaliation Guidance

Fisher & Phillips recently submitted comments to the Equal Employment Opportunity Commission (EEOC) regarding the agency’s proposed Enforcement Guidance on Retaliation. The comments reflect an effort by the firm to ensure that a balanced approach to retaliation claims be taken by the agency and any courts that choose to follow its direction, emphasizing the rights of employers just as much as their responsibilities under the law. A copy of the comments can be found here or at the attached PDF file.

Proposed Changes to the EEOC’s Retaliation Policies Signal Trouble for Employers

The U.S. Equal Employment Opportunity Commission recently proposed changes to the guidance it issues on workplace retaliation, which could drastically expand the definition of retaliation. The proposed changes, the first in nearly 20 years, are intended to update the EEOC Compliance Manual on Retaliation. Although the compliance manual does not have the authority of a regulation or administrative decision, the EEOC’s investigators heavily rely upon it in their examination of employee complaints. The shifting definition of retaliation creates uncertainty for employers in complying with the law, and is a sign of the EEOC’s complainant-friendly philosophy.

Is a Threatened Pay Cut an Adverse Action? Fifth Circuit Issues Pro-Employer Ruling in Retaliation Case

In Brandon v. Sage Corp., the Fifth Circuit Court of Appeals affirmed a decision from the Western District of Texas granting summary judgment in favor of a truck driving school. The issue in the case concerned whether the threat of a 50 percent pay cut constituted an adverse employment action sufficient to establish a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964.

EEOC Updating Its Game Plan for Investigating Retaliation Charges

The Equal Employment Opportunity Commission (EEOC) has proposed updates to its manual for processing and investigating charges, making cause determinations and considering litigation relating to retaliation.

EEOC Seeking Comments on New Enforcement Guidance Concerning Retaliation in the Workplace

Late last month, on January 21, the EEOC published its draft EEOC Enforcement Guidance on Retaliation for public comment. The comment period ends on February 24, 2016. These Guidelines would replace the current Enforcement Guidelines, which have been in place since 1998.

New EEOC Retaliation Guidance Seeks to Further Stack the Deck Against Employers

On January 21, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released its proposed changes to its guidance on workplace retaliation. These changes mark the first time the EEOC has modified its guidance in nearly 20 years. The proposed changes track the EEOC’s recent efforts to broaden conduct deemed retaliation and the concept of causation.

Fifth Circuit Holds Refusal to Accept Employee's Rescission of Resignation Can Be Considered Retaliation

On November 17, 2015, the U.S. Court of Appeals for the Fifth Circuit held an employer’s rejection of an employee’s rescission of resignation can “sometimes constitute an adverse employment action” and may be considered retaliation under Title VII. Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners, d/b/a Houma Terrebonne Housing Authority, No. 14-31090 (5th Cir. Nov. 17, 2015). Even though the case was brought under Title VII, the decision continues the trend of expanding the types of employer actions that might constitute retaliation.

Fourth Circuit Rejects "Manager Rule" Exception in Title VII Retaliation Cases

Title VII of the Civil Rights Act of 1964 not only prohibits discrimination based on race, color, sex, religion, and national origin, but also prohibits retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. In many jurisdictions, however, the so-called “manager rule” is an exception to Title VII’s anti-retaliation protections.

Circuit Courts Are Split on Applying the FLSA "Manager Rule"

The extent to which employees who are responsible for investigating or resolving discrimination complaints are protected from retaliation is still up for debate. State and federal discrimination statutes prohibit retaliating against employees who engage in activity pursuant to the same statutes. If the countless managerial employees who routinely investigate discrimination complaints in the normal course of business are found not to be engaging in protected activity, then employers would be free to retaliate against employees who don’t “toe the party line.” However, if those employees are found to be engaging in protected activity, the universe of actionable retaliation claims could balloon. While there has been little case law on this issue — up until this month, only two circuit courts had considered the issue — two additional circuits recently weighed in.

Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

Ninth Circuit Overturns Summary Judgment Issued in Favor of Employer in Retaliation Case

Lukov v. Schindler Elevator Corp., No. 12-17695 (February 24, 2015): In an unpublished decision, the Ninth Circuit recently overturned summary judgment granted to an employer on the plaintiff’s retaliation claims. William Lukov worked as an elevator mechanic for Schindler Elevator Corporation. While employed by Schindler, Lukov reported a safety issue with a department store’s elevator to the California Division of Occupational Safety and Health (DOSH). Several months after he complained, Schindler laid off Lukov off as part of a reduction in force. Lukov sued for retaliation in violation of California Labor Code sections 1102.5 and 6310. Labor Code section 6310 prohibits an employer from discharging an employee who has “made any oral or written complaint to [DOSH].” Labor Code section 1102.5 protects employees from retaliation for disclosing a violation of statute or law to a governmental agency.

A Single "Hitler" Comment Is Insufficient for a Title VII Retaliation Claim in the Fifth Circuit

The Fifth Circuit Court of Appeals recently affirmed a judgment against a City of Houston employee who claimed that he was demoted for reporting another employee’s racially offensive comment made during a workplace meeting. According to the federal appellate court, the worker had not engaged in a protected activity by reporting the single, isolated remark. Satterwhite v. City of Houston, No. 14-20240, Fifth Circuit Court of Appeal (March 3, 2015).

Retaliation Dominated EEOC Charges in 2014, Agency Statistics Show

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in fiscal year 2014 reached the lowest level since 2007, according to recently published statistics from the EEOC. Retaliation charges, however, made up 42.8 percent of all charges in the same time period, the highest percentage ever.

Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time

Lonnie Giamela and John Mavros’ article “Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time” was featured in the December issue of Hotel Executive.

Employee Needs More Than Speculation to Support his Retaliation Claim

To prevail on a claim of retaliation under federal law, an employee must prove that he or she engaged in a “protected activity” under an antidiscrimination statute and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action.

Employee’s speculation related to basis of his firing is insufficient to support a claim of retaliation.

To prevail on a claim of retaliation under federal law, an employee must prove he or she engaged in a “protected activity” under an anti-discrimination statute, and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action.

eLABORate: Court Rejects EEOC Claim that Employer's Use of Claim Waivers was Retaliation

In a recent defeat for the EEOC, a federal district court for the Eastern District of Pennsylvania reaffirmed the use of severance agreements as part of a company’s reorganization, or reduction in force, to obtain releases of potential federal claims against the employer, while shedding light on the EEOC’s continued and increased focus on such releases.

First Circuit Allows Retaliation Claim to Proceed Absent Direct Evidence of Decision Makers' Retaliatory Animus

The First Circuit Court of Appeals recently took an expansive view of the type of evidence that is sufficient to raise a genuine issue of material fact to defeat an employer’s motion for summary judgment in a wage and hour case. Specifically, in Travers v. Flight Services & Systems, Inc., No. 13-1438 (1st Cir. Dec. 12, 2013) the court considered the evidence needed to defeat a retaliation claim brought under the Fair Labor Standards Act (FLSA).

Supreme Court Tightens Standard In Retaliation Cases

As the U.S. Supreme Court ended its most recent term with a number of cases that will have broad societal implications, one employment law case decided by the Court seems to have taken somewhat of a back seat, despite the significant effect it will have on retaliation claims arising out of workplace discrimination complaints.

Firing of employee after his angry outburst during mediation did not constitute retaliation.

While Title VII's anti-retaliation provision does not prohibit all employer action after an employee has filed a discrimination charge or lawsuit, it precludes employers from taking an action that might dissuade a reasonable employee from making or supporting a discrimination charge. Recently, the 7th U.S. Circuit Court of Appeals reviewed the retaliation claim of an employee who had been fired after verbally accosting the employer’s representatives at a mediation, and determined that such a firing was not the type of action likely to keep reasonable individuals from filing discrimination claims and, therefore, was not retaliatory. Benes v. A.B. Data, Ltd., 7th Cir., No. 13-1166, July 26, 2013.

U.S. Supreme Court Ruling on Retaliation Claims Imposes “But For” Burden of Proof Standard

People often say it’s not the crime that will do you in, it’s the cover-up. In some ways, that sentiment has been applicable to retaliation claims for alleged discrimination in the workplace. At least until this past Monday, when the U.S. Supreme Court handed down its decision in University of Texas Southwestern Medical Center v. Nassar, Slip Op., No. 12-484 (U.S. Sup. Ct., June 24, 2013).

Supreme Court Improves Employers' Ability To Defend Against Unlawful Discrimination Claims

On June 24, 2013, the United States Supreme Court rendered two decisions that make it easier for employers to defend Title VII harassment and retaliation cases, and perhaps in other discrimination cases beyond Title VII. The cases are Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.

Legal Alert: Supreme Court Sets Heightened Standard for Proving Retaliation Claims

Executive Summary: On June 24, 2013, the United States Supreme Court heightened the burden of proof for employees bringing retaliation claims under Title VII by holding that employees have to prove that the employer's desire to retaliate was the "but-for" cause for the employer's adverse employment action.

Supreme Court Requires “But-For” Causation in Title VII Retaliation Claims

In 2009, the Supreme Court made it more difficult to prevail on a claim under the federal age discrimination statute by holding that a plaintiff must show that the protected activity was the “but for” cause of the adverse employment decision, rather than just one “motivating factor.” Yesterday, in a significant victory for employers, the Court broadened that holding to retaliation claims under Title VII of the Civil Rights Act of 1964. Univ. of Texas Sw. Med. Cent. v. Nassar.

"But For" Not "Motivating Factor" is Standard for Title VII Retaliation

Maybe it is because I practice in the 5th Circuit, but today's other major Supreme Court decision for the employment law world, University of Texas Southwestern Medical Center v. Nassar, (S.Ct. 6.24.13) is by far the more important case. The Court holds that retaliation under Title VII will use a "but for" not "motivating factor" standard.

Supreme Court Limits Mixed-Motive Standard

On June 24, 2013, in a 5-4 decision, the U.S. Supreme Court clarified that an employee alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 must prove that a retaliatory motive was the “but-for” cause of an adverse employment action. In other words, the employee must show that the employer would not have taken the adverse employment action but for an improper motive. The decision, which will make it more difficult for employees to prevail on retaliation claims, is a significant victory for employers. University of Texas Southwestern Medical Center v. Nassar.

All federal court circuits now recognize a cause of action for "retaliatory hostile work environment."

Most employers understand that Title VII of the Civil Rights Act precludes a discriminatory “hostile work environment,” in which acts of discrimination against an employee are so severe and pervasive that those acts have an adverse impact on the employee’s ability to do his or her job. What is less fully understood is the fact that an employee also can bring an action under Title VII based upon severe and pervasive retaliatory acts that follow a “protected action” taken by the employee.

SUPREME COURT ALLOWS THIRD-PARTY RELATION CLAIMS UNDER TITLE VII (pdf).

In Thompson v. North American Stainless, LP (January 24, 2011), the U. S. Supreme Court ruled that an employee can bring a retaliation claim under Title VII when a person closely related to the employee, such as a family member or fiancé, has engaged in activity protected under Title VII.

High Court Allows Third-Party Retaliation Suit

On January 24, with Justice Antonin Scalia writing an opinion supported by eight justices, the U.S. Supreme Court held that an employee who was fired shortly after his fiancée filed a bias charge against her employer may sue under Title VII of the Civil Rights Act of 1964 for third-party retaliation. According to the high court, the employee could be considered an "aggrieved person" under Title VII because he was "well within the zone of interests sought to be protected by Title VII." Thompson v. North American Stainless, LP, No. 09-291, U.S. Supreme Court (January 24, 2011).

U.S. Supreme Court Approves Retaliation Claim By Fiance Of Complaining Employee

On January 24, 2011, the U.S. Supreme Court unanimously ruled in Thompson v. North American Stainless that an employee allegedly fired in retaliation for a sex discrimination charge filed by his fiance could sue his employer under Title VII of the Civil Rights Act of 1964.

High Court Rules Workers May Sue For Third Party Retaliation Under Title VII

This morning, with Justice Antonin Scalia writing an opinion supported by eight justices, the U.S. Supreme Court held that an employee who was fired shortly after his fiance filed a bias charge against her employer may sue under Title VII of the Civil Rights Act of 1964 for third-party retaliation. According to the high court, the employee could be considered an "aggrieved person" under Title VII because he was "well within the zone of interests sought to be protected by Title VII."

Supreme Court: "Employee Who Never Complained Of Discrimination May Bring Claim For Retaliation"

On January 24, 2011, the Supreme Court in a unanimous ruling determined that an employee who does not directly engage in protected activity can still assert a claim for retaliation under Title VII of the Civil Rights Act as a victim who falls within the "zone of interests" of protection afforded by the statute. Writing for the majority, Justice Scalia stated "[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired." And further, that the employee "is a person aggrieved with standing to sue.

Retaliation in the Supreme Court - Danger Zone for Employers

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activty was also protected by Title VII.

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII. But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.

Relational Retaliation: More Than A Mouthful, Another Step Forward?

Jon Hyman at Ohio Employer's Law Blog has been all over the reporting of the 6th Circuit decision of Thompson v. North American Stainless, whose latest iteration at that level was an en banc rejection of a retaliation claim brought by an employee fired three weeks after his fiancee' filed a charge of discrimination against the same company. Since he himself did not engage in any protected activity, the en banc court overturned a panel decision which had held he was within the zone of protection of the anti-retaliation provisions.

Retaliation Claims Continue to Rise, Lead the Pack at the EEOC

From 1997 to 2008, race discrimination was the most frequently asserted claim by individuals filing charges of discrimination with the Equal Employment Opportunity Commission (EEOC). Since 1997, race discrimination has been asserted in approximately 35% of all EEOC charges.

Argument for the Opposition: The Supreme Court Clarifies Employees Opposition as Protected Activity.

What constitute an employees opposition to conduct such that it is protected under the law?

High Court Issues Key Ruling In Retaliation Case.

On January 26, the U.S. Supreme Court once again expanded employ-ees' ability to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in "protected activity" under Title VII of the Civil Rights Act. As a result of this ruling, it is likely that employers will face even more retaliation litigation.

Supreme Court Expands Scope of Title VII Retaliation Claims.

Today the Supreme Court handed down a decision in Crawford v. Metropolitan Govt. of Nashville expanding the types of employee conduct that can trigger protection under Title VII.

High Court Issues Key Ruling in Retaliation Case.

On January 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in "protected activity" under Title VII of the Civil Rights Act. As a result of this ruling, it is likely that employers will face more retaliation claims.

High Court Issues Key Ruling in Retaliation Case.

On January 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in "protected activity" under Title VII of the Civil Rights Act. As a result of this ruling, it is likely that employers will face more retaliation claims.

Plaintiff Bears the Ultimate Burden of Proving Retaliatory Motive.

In an unpublished opinion, the U.S. Circuit Court of Appeals for the 10th Circuit reminds us that whether a case is based on allegations of discrimination or on allegations of retaliation, the individual bringing the lawsuit carries the ultimate burden of proof in the case.

Reduction in Force Sufficient to Overcome Pretext Argument in Retaliation Case.

The 1st U.S. Circuit Court of Appeals has upheld summary judgment in favor of an employer who asserted that it had terminated the employment of a human resource manager because of his poor performance and a reduction-in-force, and not because of his prior testimony in a sexual harassment claim filed against the company.

Consensual Sexual Relationship May Not Support Subsequent Claim of Retaliation.

Title VII's anti-retaliation provision states that it is unlawful for an employer to discriminate against any individual because he or she opposes an action prohibited by Title VII. The 7th U.S. Circuit Court of Appeals recently found that an individual's claim of retaliation was not supported by the evidence, because that individual did not necessarily believe that he was being sexually harassed by his supervisor, with whom he was having a consensual sexual relationship.

Seven Tips for Avoiding Retaliation Claims (And Still Hold Poor Performers Accountable).

Experienced Human Resources professionals know this dilemma all too well -- slackers and malcontents who have learned to use the threat of retaliation claims as a sword instead of a shield. Besides failing to perform their duties, these employees regularly grouse or nitpick, almost daring their supervisors to intervene. Meanwhile, frustrated supervisors put off dealing with poor performance or disruptive conduct.