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  High Court Issues Key Ruling In Retaliation Case.Ogletree Deakins - April 14, 2009 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. Report Link U.S. Supreme Court Expands Employee Protections Against Retaliation.Littler Mendelson, P.C. - February 06, 2009 The United States Supreme Court recently held, in a unanimous opinion, that Title VII's anti-retaliation provisions protect employees who disclose allegations of unlawful conduct while being interviewed as part of an internal investigation conducted by the employer. In Crawford v. Metropolitan Gov't of Nashville and Davidson County, No. 06-1595 (January 26, 2009), the Court held that an employee need not initiate a complaint in order to have engaged in protected activity under Title VII. Rather, when an employee reports inappropriate behavior during an internal investigation, that report qualifies as protected opposition to the inappropriate conduct. Crawford is just the latest in a series of Supreme Court decisions that further expand the concept of actionable retaliation and will, undoubtedly, lead to further litigation in this red hot area. Report Link U.S. Supreme Court Rejects Employer’s Argument and Confirms Broad Scope of Title VII Antiretaliation ProvisionGray Plant Mooty - February 03, 2009 A recent U.S. Supreme Court case confirms that employees are protected from retaliation under Title VII if they speak out about discrimination for the first time during an employer’s internal investigation. On January 26, 2009, the U.S. Supreme Court reinstated a previously dismissed Title VII retaliation claim of an employee who alleged that she was fired because she had disclosed that she had been subject to inappropriate conduct by a manager during the employer’s internal investigation of another employee’s complaint of sexual harassment. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06 1595. This ruling makes clear that the provision of Title VII that bars employers from discriminating against employees because they have “opposed any practice” that is made unlawful by Title VII encompasses employees who inform the employer of potentially discriminatory behavior even though they never make their own complaint of discrimination. Report Link Supreme Court: Title VII Anti-Retaliation Covers Responses to Internal Harassment Investigation.Jackson Lewis LLP - February 02, 2009 The United States Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 (the federal anti-discrimination and anti-harassment statute) protects an employee from retaliation even when the employee merely reports discrimination in response to an employer’s questions during an internal investigation of discrimination or harassment complaints made by others. It is not necessary for the employee herself to come forward to initiate a report of discrimination or harassment for protection against retaliation to be available. Report Link Supreme Court Holds That Employee’s Responses To Employer Investigations May Provide Basis for Retaliation Claim.Phelps Dunbar LLP - January 30, 2009 On January 26th, the United States Supreme Court issued its decision in Crawford v. Metro. Gov't of Nashville & Davidson County, Tennessee. The Court held that, by responding to questions from her employer about her allegations of sexual harassment, an employee had "opposed" unlawful conduct under Title VII, and could therefore bring a retaliation claim for her subsequent termination. The decision expands the potential grounds for retaliation lawsuits under Title VII. How much it will expand those grounds remains to be seen. Report Link Supreme Court Protects Witnesses Who Corroborate Discrimination During Internal EEO Investigation.Vedder Price - January 29, 2009 Continuing a trend toward protecting employees from employer retaliation, the U.S. Supreme Court
unanimously decided that reporting discriminatory behavior during an employer’s internal investigation is
protected conduct within the meaning of Title VII’s prohibition on retaliation. Crawford v. Metropolitan
Government of Nashville, No. 06-1595 (Jan. 26, 2009).
During the course of an internal investigation into rumors that a manager was engaging in sexually
offensive behavior, Crawford and other employees were interviewed. In response to questions Crawford
stated that the manager had engaged in sexually inappropriate behavior toward her. After she and two
other accusers were terminated, Crawford brought suit alleging she was fi red in retaliation for the information
she provided during the investigation. Report Link U.S. Supreme Court Reverses Sixth Circuit, Opening the Door for More Retaliation Claims.Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - January 29, 2009 In a unanimous decision handed down on January 26, 2009, the United States Supreme Court reversed the Sixth Circuit Court of Appeals in a retaliation case that originated in Nashville, Tennessee, paving the way for investigation witnesses to make claims of retaliation if they are subject to adverse employment action during or after an investigation. Report Link Supreme Court Extends Title VII Anti-Retaliation Protection to Witnesses in an Employer’s Internal Discrimination Investigation.Baker Hostetler LLP - January 28, 2009 On Monday, January 26, 2009, the U.S. Supreme Court ruled in a 9-0 decision that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects an employee who speaks out about discrimination during an employer’s investigation into another employee’s complaint of discrimination from retaliation. Report Link Supreme Court Expands Employer Liability for Retaliation Under Title VII's "Opposition" Clause Elarbee, Thompson, Sapp & Wilson, LLP. - January 28, 2009 In Crawford v. Metropolitan Government of Nashville & Davidson County, U.S. No. 06-1595 (January 26, 2009), the United States Supreme Court expanded employers’ liability under Title VII to those who retaliate against employees who disclose unlawful conduct in response to questions that arise during an internal investigation. In Crawford, the employer (“Metro”) initiated an internal investigation into rumors of sexual harassment of its employee relations director (Hughes). Report Link Supreme Court Expands Scope of Title VII Retaliation Claims.Fisher & Phillips, LLP - January 27, 2009 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. Report Link Supreme Court Clarifies Scope of Title VII Retaliation Prohibition.Ford & Harrison LLP - January 27, 2009 On January 26, 2009, the U.S. Supreme Court held that an employee who discloses information about discriminatory conduct in response to questions that are part of an employer's internal investigation is protected by the "opposition clause" of Title VII's prohibition on retaliation. See Crawford v. Metropolitan Government of Nashville (1/26/09). In reaching this decision, the Supreme Court rejected the Sixth Circuit's determination answering questions during an internal investigation was not the type of "active" opposition to unlawful conduct protected by Title VII. Report Link High Court Issues Key Ruling in Retaliation Case.Ogletree Deakins - January 27, 2009 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. Crawford v. Metropolitan Government of Nashville (U.S. 2009)Report Link Plaintiff Bears the Ultimate Burden of Proving Retaliatory Motive.Ogletree Deakins - January 27, 2009 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. Report Link Reduction in Force Sufficient to Overcome Pretext Argument in Retaliation Case.Ogletree Deakins - December 22, 2008 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. Report Link Consensual Sexual Relationship May Not Support Subsequent Claim of Retaliation.Ogletree Deakins - October 15, 2008 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. Report Link Seven Tips for Avoiding Retaliation Claims (And Still Hold Poor Performers Accountable).Fisher & Phillips, LLP - April 02, 2008 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. Report Link U.S. Supreme Court Will Determine Whether an Employee who Cooperates in Internal Harassment Investigation is Protected from Retaliation.Ford & Harrison LLP - January 25, 2008 The U.S. Supreme Court recently granted review in a retaliation case that could have a significant impact on employers. In Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee (U.S. cert. granted Jan. 18, 2008), the Court will determine whether an employee who cooperates in an employer’s internal investigation of a sexual harassment allegation, where no agency charge has been filed, is protected from retaliation under Title VII of the 1964 Civil Rights Act. Report Link Special Report on Retaliation Claims: An Overview for EPL Claims Managers and Underwriters.Jackson Lewis LLP - January 25, 2008 In the last decade, the number of charges filed with the Equal Employment Opportunity Commission ("EEOC") alleging employment retaliation has continued to grow, increasing from 18,198 in 1997 to 22,555 in 2007. Retaliation claims now represent around 30 percent of all charges filed with the EEOC. Report Link No Need to Walk on Eggshells When Reprimanding an Employee Who Has Claimed Discrimination.Jackson Lewis LLP - July 31, 2007 Although an employee made several complaints of harassment and sexually discriminatory treatment, alleged supervisory reprimands, including critical comments on lack of customer solicitations, denial of sales assistance of doubtful value, and the employer's asserted reluctance to discuss the employee's past harassment claims, even if true, would result only in trivial harm and not provide a basis for Title VII retaliation claims under Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), a federal appeals court in St. Louis has held. Report Link Fifth Circuit Reiterates that Temporal Proximity, Alone, Does not Establish Retaliation.Ford & Harrison LLP - April 20, 2007 When do you discipline an emlpoyee who has previously complained about discrimination? Report Link U.S. Supreme Court Expands Extent of Employer Liability for Retaliation Claims.Littler Mendelson, P.C. - January 15, 2007 In this Littler attorney authored article discussing the new liabilities for employers as a result of the June Burlington Northern & Santa Fe Railway Co. v. White case, Littler's Gina Cook discusses the new standard for retaliatory conduct. She notes that now "the employee need only show that the conduct was materially adverse and it might have dissuaded a reasonable employee from making or supporting a charge of discrimination. This basically means that any action on the part of the employer that is serious enough to possibly, or does in fact, deter an employee from making or assisting in making a charge of discrimination will be considered unlawful and actionable retaliation." Cook also makes several points on why this should grab any employer's attention, and makes recommendations for steps of preparation. Report Link Should Employers Expect an Increase in Retaliation Claims in 2007?Elarbee, Thompson, Sapp & Wilson, LLP. - January 04, 2007 Earlier this year, the Supreme Court made it much easier for employees to show that an employer has violated Title VII’s anti-retaliation provision. In Burlington Northern & Santa Fe Railway Co. v. White, the Court held that “the scope of [Title VII’s] anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm” to include any materially adverse employer action which “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court noted that the standard is an objective one – the alleged retaliatory act must be likely to deter a reasonable person standing in the employee’s shoes from filing a complaint. Report Link The United States Supreme Court Defines Retaliation And Expands Employee Rights.Fredrikson & Byron, P.A. - September 13, 2006 Retaliation claims are on the rise, accounting for one out of every four employment claims filed. Courts have long recognized that employer or supervisor mishandling of protected complaints can turn a weak discrimination claim into a strong retaliation claim. On June 22, 2006, the United States Supreme Court (in Burlington Northern & Santa Fe Railway Co. v. White) solidified this point with respect to Sheila White’s claims arising under the federal anti-discrimination law, Title VII. Report Link High Court takes broad view of retaliation (pdf).Ogletree Deakins - September 11, 2006 Report Link United States Supreme Court Delivers Double-Whammy for Employers: Retaliation and Discrimination Just Got Easier To Prove (pdf).Jones Walker - September 08, 2006 Retaliation and Discrimination Just Got Easier To Prove. Report Link U.S. Supreme Court Struggles to Define Employer Retaliation under Title VII (pdf).Vedder Price - August 04, 2006 Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination on the basis of race,
color, religion, sex or national origin. It also forbids
employers from retaliating against employees
or applicants for fi ling a charge, participating or
assisting in a charge or an investigation, or otherwise
exercising rights provided under Title VII. Report Link U.S. Supreme Court Clarifies Scope of Employer Retaliation Under Title VII (pdf).Vedder Price - July 31, 2006 The U.S. Supreme Court’s recent decision in Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259
(June 22, 2006), holds that any adverse employment action that would dissuade a reasonable worker from pursuing a
charge of discrimination is sufficient to state a claim of retaliation under Title VII. This is the standard used by the U.S.
Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana), but is broader than the test applied
by other appellate courts. The Supreme Court also reaffirmed that illegal retaliatory action against an employee can
occur outside the workplace. Report Link Retaliation Under Title VII – The United States Supreme Court (pdf).Phelps Dunbar LLP - July 28, 2006 The United States Supreme Court recently held in
Burlington Northern v. White, 2006 WL 1698953 (U.S.),
that the application of Title VII’s retaliation provision
does not confine the actions and harms it forbids solely
to those that are related to employment or occur at the
workplace. The Supreme Court further concluded that
the provision covers those (and only those) employer
actions that would have been materially adverse to a
reasonable employee or job applicant. Report Link Rise in Claims Likely After Supreme Court Loosens Standard in Retaliation Lawsuits.Jackson Lewis LLP - June 28, 2006 On June 22, the U.S. Supreme Court issued a decision expanding the protection to employees who allege they have suffered retaliation after making a complaint of discrimination or harassment under Title VII of the Civil Rights Act of 1964. Report Link Supreme Court Broadens Title VII's Anti-Retaliation Provision.Elarbee, Thompson, Sapp & Wilson, LLP. - June 26, 2006 Yesterday, the U.S. Supreme Court effectively broadened Title VII’s anti-retaliation provision by differentiating it from Title VII’s anti-discrimination provision. Report Link U.S. Supreme Court Adopts Expansive Interpretation of Title VII Retaliation.Ford & Harrison LLP - June 26, 2006 On June 22, 2006, the U.S. Supreme Court issued a decision that will likely make it easier for individuals claiming retaliation under Title VII to take these claims to trial. See Burlington Northern and Santa Fe Ry. Co. v. White. In this case, the Court held that a person complaining of retaliation under Title VII is not required to prove that the allegedly retaliatory conduct was related to his or her employment or workplace. Additionally, the Court held that a retaliation claim can proceed if the complaining person shows that a reasonable employee would have found the challenged action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. The standard adopted by the Court in Burlington Northern is more lenient than that imposed by many federal appeals courts. Report Link Supreme Court Broadens Employee Protection Against Unlawful Retaliation.Littler Mendelson, P.C. - June 26, 2006 On June 22, 2006, the United States Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259 (June 22, 2006), defined what constitutes an "adverse action" sufficient for an employee to successfully assert a Title VII retaliation claim. The Supreme Court had not previously addressed this issue. The Court held that a retaliatory "adverse action" need not be related to the employee's terms and conditions of employment. It further held that illegal retaliation occurs whenever the adverse conduct or harm would have the effect of discouraging a "reasonable employee" from making a discrimination complaint. Report Link United States Supreme Court Makes It Easier for Employees to Bring Retaliation Claims (pdf).Phelps Dunbar LLP - June 26, 2006 In what could be the most significant
employment law decision in years, a unanimous
Supreme Court has made it easier for employees to
bring retaliation claims against their employers.
Burlington Northern v. White. The decision may
prove to be a nightmare for employers when making
personnel decisions or disciplining employees who
have previously claimed workplace discrimination.
The ruling marks the first time the high court has
spelled out how significant retaliation must be to
serve as the basis for a federal lawsuit, and could open
a new floodgate of litigation. Report Link Supreme Court Clarifies "Adverse Employment Action" In Retaliation Cases (pdf).Ogletree Deakins - June 26, 2006 Supreme Court Clarifies "Adverse Employment Action" In Retaliation Cases.
Report Link United States Supreme Court Hears Oral Arguments Regarding What Constitutes Retaliation in White v. Burlington N & Santa Fe Railroad Company.Phelps Dunbar LLP - May 16, 2006 On Monday, April 17, 2006, the United States heard oral
arguments in White v. Burlington N. and Santa Fe Railroad
Company, 364 F.3d 789 (6th Cir. 2005), cert. granted, 126 S.Ct.
797 (Dec. 5, 2005). Specifically, the Supreme Court granted
certiorari to determine what constitutes retaliation under Title
VII. The following issues are presented for review. Report Link Federal Appeals Court Affirms Large Retaliation Award in Sex Discrimination Case. Jackson Lewis LLP - March 01, 2000 Discusses Passantino v. Johnson & Johnson Consumer Products, Inc. 2000 U. S. App. LEXIS 4003 (9th Cir. 2000), in which the appellate court upheld $4 million dollar award. Report Link Recent Trend in Retaliation Claims Leaves Employers Vulnerable to More Than Discrimination Suits. Jackson Lewis LLP - March 01, 2000 Discusses fact that retaliation claims have risen greatly over the years, describes recent cases involving retaliation and provides brief discussion on how to avoid such claims. Report Link Special Report On Retaliation Claims: An Overview for EPL Claims Managers and Underwriters. Jackson Lewis LLP - March 01, 2000 Lengthy discussion of retaliation claims, including discussion regarding: "Sue While You Work: Retaliation Claims Are on the Rise", "What are the Legal Grounds for Retaliation?", "What are the Elements of an Actionable Claim of Retaliation?", "The Wages of Sin: Remedies for Retaliation", and "Prevention of Retaliation Claims."
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