I. Retaliation

• Jurisdiction: New York

I. Retaliation

An increasingly important area of law for a general practitioner to become familiar with is the protections provided to employees under federal and state anti-retaliation laws. One of the most important anti-retaliation provisions is contained in Title VII of the 1964 Civil Rights Act,¹⁷⁴ which prohibits retaliation against an applicant or employee for opposing an unlawful employment practice or "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing."¹⁷⁵ In 2013, the Supreme Court held in University of Texas Southwestern Medical Center v. Nassar¹⁷⁶ that a plaintiff must prove in a retaliation claim under Title VII that the sole reason for the employer's adverse action was the individual's protected activity. The general practitioner should be aware that the "but for" standard is a heightened burden in comparison to the standard applied in a status-based discrimination claim under Title VII.¹⁷⁷ The "but for" standard, however, is similar to the standards applied in public sector retaliation claims under the First Amendment¹⁷⁸ and the Taylor Law.¹⁷⁹

In Burlington Northern and Santa Fe Ry. Co. v. White¹⁸⁰ the Supreme Court ruled that the Title VII anti-retaliation provision is not limited to actions or harms that take place in the workplace and it protects against employer actions "that would have been materially adverse to a reasonable employee or job applicant."¹⁸¹ The Supreme Court has concluded that an employee describing sexual harassment in the workplace, during an interview as part of an employer's investigation into a coworker's complaint, constitutes protected opposition to discriminatory conduct under Title VII.¹⁸²

In Thompson v. North American Stainless, LP,¹⁸³ the Court concluded that an employee's complaint stated a claim of retaliation under Title VII by alleging that he was terminated after his fiancée, who worked for the same employer, filed a gender discrimination charge under the EEOC.

Title VII is not the only federal anti-discrimination law that prohibits retaliation. The Supreme Court has ruled that a retaliation claim is cognizable under 42 U.S.C. § 1981 brought by an individual who is retaliated against because he complained about racial discrimination against another employee.¹⁸⁴ Similarly, retaliation by a school district in response to a complaint of sex discrimination is a form of intentional sex discrimination prohibited by Title IX of the...