Retaliation Cases Research Articles

Retaliation in workplace sexual assault: The effect of #MeToo on federal court cases in the United States

The number of federal claims filed with the Equal Employment Opportunity Commission (EEOC) in the United States by alleged victims of workplace sexual assault increased following the #MeToo movement along with allegations of retaliation by employers against these victims for making formal claims of sexual discrimination. This study distinctively presents an examination, not of the number of EEOC claims, but instead those claims which became federal court cases over the last three years in which a claims of workplace retaliation were alleged because of sexual assault in the workplace. The study provides an empirical examination of numerous characteristics, related factors, and outcomes of such retaliation cases involving sexual assault in the contemporary #MeToo era. The implications of these diverse results are advanced along with recommendations for employers and employees alike.

Recognizing the importance of whistleblowers in healthcare.

Healthcare professionals who raise concerns about workplace safety or other problems should be praised as heroes and changemakers. However, some whistleblowers face retaliation for speaking out, and the incidence of retaliation cases against these employees has spiked during the COVID-19 pandemic. This article reflects on the role of whistleblowers and their importance to public accountability.

Stigma and Whistleblowing: Should Punitive Damages be Available in Retaliation Cases?

Abstract This article uses a range of disciplinary perspectives to examine what is meant by stigma and explains that it is a relational concept. It argues that there has been a shift from attributing social stigma to whistleblowing, to regarding whistleblowing as a form of prosocial behaviour, that is, something which contributes to the well-being of others. This shift is evidenced by the attempts to establish supportive organisational cultures through the introduction of specialist employer policies and procedures, the existence of protective legislation and the coverage of whistleblowing in the media. Although it is questioned why stigma should still attach to whistleblowing, it is acknowledged that those who suffer reprisals may well seek stigma damages. Thus the article traces the common law and statutory origins of stigma awards and discusses the appropriateness of exemplary/punitive damages in the employment field. In the conclusion, it is advocated that Parliament expressly provide for exemplary/punitive damages to be awarded in employment cases. In addition, practical suggestions are made about how a more positive attitude to whistleblowing can be achieved, including a possible role for criminal sanctions. The author asserts that a more punitive approach is justified because whistleblowing is an important aspect of the human right to freedom of expression which must be fully protected in order to ensure the proper functioning of a democratic society.

Retaliation against employees in the USA: an analysis in terms of organizational behavior

Purpose – The number of retaliation charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) has been increasing dramatically over last decade. This analysis is grounded on the USA regulations and a merged city and a county local government in the USA. Organizational analysis was based on the work of Bolman and Deal (2008). This study's aim was to explore the relationships between organizational behavior and retaliation against employees in the USA and increase attention among scholars for further research as well. Although retaliation is classified under discrimination it is taken as a special charge. Methodology– The recent lawsuit examples demonstrate the apparent costly conflict within the local government, organizational structure and its systems are reviewed to explore if they are causing negative conflicts in the organization. Bolman and Deal's (2008) strategy is applied to the studied local government in the USA. To be able to understand the relationships between the local governmental structure and retaliation problems is deeply analyzed on structural, human resources, political, and symbolic frames. Most of the retaliation cases took place at the Division of Community Correction. To explore if there are internal contributors’ effects to the problem requirements for a job application and job descriptions of a correction officer are investigated and compared with other organizations’ job description for the same position, as well as training requirements. Findings – This study revealed several problems that the studied local government needs to address to prevent retaliation cases. First of all, the local government doesn’t have an established culture, and because of that, the employees are not sure how to behave or act when they face challenges. Although organizational symbols exist to eliminate confusion, ambiguity to provide direction, to secure hope and faith in organizations, the local government doesn’t have clear symbols. While stories convey values and serve as powerful modes from the tyranny of facts and logic, the local government’s employees are afraid of speaking out about some issues, and bad stories pass from employees to employees. In terms of policies, the study discovered that whatever stated officially is not in use. Harassment training is given to new beginners and never reoffered to current employees. Broken and unclear communication is another finding that might be leading to organizational problems. Conclusion – The increasing number of costly retaliation cases in the United States needs more attention to the causes to solve this problem. Public agencies are funded by taxes paid by households and companies to the government to receive services such as water, roads, education etc. Public agencies’ high lawsuit settlement payments jeopardize the public’s rights to have services. These problems have some indirect costs which should be taken into account. Currently, little attention is paid to the subject by scholars, and therefore it needs to be explored more. The results of the study would apply to many organizations including public and private sector.

Janus, Union Member Speech, and the Public Employee Speech Doctrine

In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings. The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases. This Article argues that, after Janus, speech by union representatives on behalf of their union is not “employee speech” under Garcetti and is almost always a matter of public concern under Connick. Further, this Article argues that ordinary union member speech and union grievance filings are not “employee speech” either. In support of the latter, this Article also looks to the Supreme Court’s decision in Lane v. Franks as well as the nature of union membership generally.

,,,A New Type of Circuit Split: The Hidden Circuit Split in Retaliation Cases

,,,A New Type of Circuit Split: The Hidden Circuit Split in Retaliation Cases

Retaliatory Discharge For Filing a Workers' Compensation Claim in Wyoming

Wyoming workers who file workers’ compensation claims and are subsequently retaliated against may bring an action for retaliatory discharge because such an action is neither precluded by the exclusive remedy rule nor by the employment “at-will” doctrine. As a practical matter, however, such claims still face two unjust barricades: 1) the causation standard is the “substantial and motivating” factor test; 2) the burden shifting mechanism forces employees to prove a negative, and to do so persuasively. While this test is better than the test the United States Supreme Court adopted in Title VII retaliation cases, it should be remodeled after the Wright Line test of labor law. The Wright Line test only requires a motivating factor under the prima facie prong, and it also shifts the burden of persuasion to the employer once the prima facie prong is satisfied. Wyoming should adopt this test because once an employee shows any illegal motive on the employer’s part, the onus should be on the employer to show innocent motive. Further, a strong retaliation test will reinforce the system of workers’ compensation and protect the underlying constitutional right to damages upon an injury. Such an alteration in Wyoming’s test would not run afoul of Wyoming’s intent to strictly construe its workers’ compensation statute, as other states that also strictly construe their workers’ compensation statutes have forceful retaliation jurisprudence. Accordingly, it would be suitable for Wyoming to implement forceful retaliation laws that would protect that right. Additionally, Wyoming looked to Oklahoma, a liberal construction state, when fashioning its retaliation jurisprudence. This shows that Wyoming strongly opposes employer destabilization of the workers’ compensation system through unjust firings.

Men, Masculinities, and Murder-Suicide.

Murder-suicide (M-S) is a complex phenomenon that can involve a multifaceted set of interrelated biological and social factors. M-S is also sexed and gendered in that the perpetrators are most often male and their underpinning motives and actions link to masculinities in an array of diverse ways. With the overarching goal to describe connections between men, masculinities, and M-S, 296 newspaper articles describing 45 North American M-S cases were analyzed. The inductively derived findings revealed three themes: (a) domestic desperation, (b) workplace justice, and (c) school retaliation. Cases in the domestic desperation theme were characterized by the murder of a family member(s) and were often underpinned by men’s self-perceptions of failing to provide economic security. Workplace justice cases emerged from men’s grievances around paid-work, job insecurity, and perceptions of being bullied and/or marginalized by coworkers or supervisors. The school retaliation cases were strongly linked to “pay back” against individuals and/or society for the hardships endured by M-S perpetrators. Prevailing across the three themes was men’s loss of control in their lives, hopelessness, and marginalized masculine identities. Also evident were men’s alignments to hegemonic masculinities in reasserting one’s masculine self by protesting the perceived marginalization invoked on them. Overall, the findings give pause to consider the need for men-centered M-S prevention strategies to quell the catastrophic impacts of this long-standing but understudied men’s health issue.

Annual Legal Update

This was a year of great expectations in the field of higher education law, and it continues as such, with our expectations unfulfilled. There were some significant decisions issued shortly after the last Annual Conference. In June of 2013, the U.S Supreme Court issued five decisions of importance to faculty members and institutions: in Fisher (infra at pg. 12), the Court reaffirmed the legal standard applicable to affirmative action in higher education admissions; in two employment law cases, Nassar and Vance, (infra at pg. 14-15) the Court addressed the standard of proof in retaliation cases and the issue of supervisory authority; and in Windsor and Hollingsworth, (infra at pg. 5-6) the Court addressed the issue of gay marriage. Finally, there were a number of significant lower court decisions on issues including copyright law, First Amendment protections, FOIA requests and tenure contracts.

Workplace retaliation: A review of emerging case law.

In recent years, retaliation claims with the Equal Employment Opportunity Commission have emerged as the most prevalent discriminatory charge leveled by employees. After several Supreme Court rulings that expanded coverage for employees in retaliation cases (e.g., Kasten v. Saint-Gobain Performance Plastics, 2011; Thompson v. North American Stainless, 2011), the Court recently reversed course and issued a decision making it more difficult for employees to succeed in retaliation claims (University of Texas Southwest Medical Center v. Nassar, 2013). So, has the legal tide turned against employees with regard to the issue of workplace retaliation? These cases (and others) have highlighted this emerging legal issue and the potential impact of retaliatory claims for both the employees and management. Due to the saliency of this important workplace issue, this article summarizes key legal decisions with regard to workplace retaliation and the implications for both workers and organizations. In addition, the authors suggest specific recommendations for organizations regarding (a) preventative actions, (b) managerial interventions, and (c) pitfalls to avoid in order to minimize the likelihood of retaliatory behaviors and legal claims.

Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar

The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rights interpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.

Is It “A” or Is It “The”?

The recent Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar has brought exposure to a prevalent problem in employment discrimination and retaliation cases: there is great discrepancy in how plaintiffs have to prove and courts have to assess these claims. Depending on whether the case is based on discrimination or retaliation pursuant to the ADA, ADEA, or Title VII, the standard that needs to be met might be that the plaintiff must prove that discrimination was “the” motivating-factor for the adverse employment action or that it was “a” motivating-factor for the action. Adding even greater confusion is the fact that, if an employee argues that they are the victim of discrimination (such as on the basis of national origin) and retaliation, the employee might have to prove that their national origin was “a” motivating-factor in the discrimination case and “the” motivating-factor in the retaliation aspect of the case. If this sounds confusing to scholars and attorneys, imagine how confusing these various standards within one case can be for potential litigants, judges unfamiliar with employment law, and a member of the jury! This Article delves into these muddy waters and attempts to highlight the issues, spotlight the statutes, and ultimately formulate a working motivating-factor standard that can be infused into all of the various employment discrimination statutes and thus result in a consistency in interpretation and application.

Post-Burlington: What Employers and Employees Need to Know About Retaliation

Since the landmark decision in Burlington Northern & Santa Fe Railway Co. v. White, numerous federal district courts and circuit courts of appeals in the United States have considered employees’ retaliation claims. This paper reviews several post-Burlington cases and provides employers with a roadmap as to what has been held to be retaliation under the law and what has not. Our contribution is an up-to-date analysis of retaliation cases, on a specific employment action basis, to provide guidance to employers of the types of activity that could support a claim of retaliation and to employees to alert them as to the types of activity that they should not have to endure in the workplace.

Broadening the Definition of Unlawful Retaliation Under Title VII

Title VII retaliation cases have become a larger part of the Equal Employment Opportunity Commission (EEOC) caseload, and this development should be a growing concern for business. By addressing the question of exactly when a prohibited retaliatory action has been taken against an employee, the United States Supreme Court’s June 2006 decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White ended a significant disagreement among the various appellate courts on the issue. The Supreme Court answered two specific questions regarding retaliation for raising a claim of sexual discrimination. First, the Court decided that the retaliatory conduct need not take place within the employment setting; and, second, it held that a materially adverse action requires only that a reasonable employee would be deterred from making, filing, or supporting a claim of workplace discrimination to the EEOC, the courts, or the employer. Employers need to revise and update their internal policies and procedures to ensure that their firms comply with these new standards.

The "Disappearing" Dilemma: Why Agency Principles Should Now Take Center Stage in Retaliation Cases

In Burlington Northern Santa Fe Railroad v. White, Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors. While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, they have largely ignored the interplay of agency and retaliation when actions are taken by supervisors. The Article makes four key points. First, as a descriptive matter, the Article demonstrates how the facts of the Burlington case, as well as the way that the case was positioned legally, resulted in a decision where important agency principles appear to have been addressed, but actually were not. Next, the Article will argue that the lower courts in a post-Burlington world are intuitively sensing that agency concerns still lurk in retaliation claims. However, rather than address the agency issues, the lower courts appear to be improperly addressing concerns about employer liability through other portions of the retaliation inquiry, a practice that is not only disingenuous, but that will also result in an inconsistent development of the substantive retaliation provision.The discussion then turns toward creating a framework to determine the types of cases in which agency will play an important role. Finally, the Article argues that unless Burlington is interpreted in the way suggested in this article, the decision will result in an agency jurisprudence that is at odds with the Court's current Title VII agency decisions. Such an outcome is untenable for most types of retaliation, as there is no theoretical reason to treat agency principles differently in the retaliation context, than in the discrimination context. Where arguments exist for departure from the traditional framework, the Article identifies those arguments, but ultimately concludes that the current structure is the best way to address agency issues in retaliation claims.

Police Civil Liability and the First Amendment: Retaliation Against Citizens Who Criticize and Challenge the Police

This article explores Section 1983 civil liability against police officers who retaliate against citizens exercising their First Amendment rights. The retaliation cases are categorized into three groups, using the standard developed by the United States Supreme Court in Mt. Healthy City School District Board of Education v. Doyle (1977). The article then identifies three defenses successfully used by police officers, and concludes that officers must develop skills in anger management and interpersonal communication, so when confronted with verbal challenges, they can de-escalate the situation without risking First Amendment liability.

The consulting psychologist as an expert witness in sexual harassment and retaliation cases.

The consulting psychologist as an expert witness in sexual harassment and retaliation cases.

The consulting psychologist as an expert witness in sexual harassment and retaliation cases.

The consulting psychologist as an expert witness in sexual harassment and retaliation cases.