What makes retaliation the most common discrimination claim in America?
I suspect it's because other forms of discrimination
(e.g., race, gender, disability) are more difficult to prove and don't always
result in an adverse employment action, such as termination of employment. And
since most people like to keep their jobs, they're more reluctant to rock the
Conversely, retaliation always includes adverse action --
quite often a firing -- and follows what the law terms a "protected
activity" (opposition to discrimination or participation in the statutory
complaint process). So, you have a situation where an employee suspects
discrimination is afoot, complains about it, and then gets fired.
Retaliation salt rubbed in an open discrimination
So, any Supreme Court ruling affecting the standard for
proving retaliation is big news.
Last Friday, the U.S. Supreme Court agreed (here) to decide what level of proof a plaintiff must
establish to prevail on a retaliation claim. Here is the question presented to
VII's retaliation provision and similarly worded statutes require a
plaintiff to prove but-for causation (i.e., that an employer would not have
taken an adverse employment action but for an improper motive), or instead
require only proof that the employer had a mixed motive (i.e., that an improper
motive was one of multiple reasons for the employment action).
To date, courts of appeals are divided 3-2 on this issue.
Having done this for a while now, let me tell you that if
an employee's good-faith internal complaint of discrimination or a Charge of
Discrimination filed with the EEOC at all factors into your decision to act
against an employee, make sure your litigation budget is teeming with Mr.
This article was originally published on Eric B. Meyer's blog, The Employer
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