Retaliation

• Author: Laura M. Franze
• Pages: 264-288

26-264

Chapter 26

RETALIATION

By Laura M. Franze

26:1. INTRODUCTION

A. Nature of Retaliation Claim

B. Underlying Basis for Retaliation Claim

C. Who May Bring Retaliation Claim?

D. Exhausting Administrative Requirements

E. Trend: Growth in Number of Retaliation Claims Filed

1. Less Likely Dismissed on Summary Judgment

2. Potentially More Lucrative for Plaintiffs

3. Not Contingent on Success of Underlying Claim

4. Potential for Punitive Damages

26:2. LEGAL ELEMENTS OF RETALIATION CLAIM

A. Prima Facie Case

B. Is Activity Protected?

1. Bad Faith Activity

2. Unreasonable Conduct or Manner of Opposition

3. Conduct Out of Proportion to Discrimination Protested

4. Conduct in Breach of Duty Owed Employer

5. Conduct Is Part of Job Duties

C. Is Defendant’s Response an “Adverse Employment Action?”

1. Burlington Northern & Santa Fe v. White, 548 U.S. 53 (2006)

2. Fifth Circuit

3. Material Changes to Job Functions

4. Interference With Employment Prospects

D. Causation: Did “A” Cause “B”?

1. Timing of Adverse Action

a. Proximity to Protected Activity

b. As Culminating Event in Process That Predates Protected Activity

26-265 reTaliaTion

2. Employer’s Consciousness of Potential for Litigation

3. Mindset of Decision-Maker

4. Intervening “Nice” Treatment of Plaintiff

26:3. RETALIATION CLAIMS BY HUMAN RESOURCES PROFESSIONALS AND

IN-HOUSE COUNSEL

A. Claims by Human Resources Professionals

1. Job Duty

a. Informing of Violations of Law

b. Investigating Discrimination

c. Job Performance

(1) Valid Terminations

(2) Invalid Terminations

2. Breach of Loyalty

B. Claims by In-House Counsel

1. Protecting Client Confidences

2. Standard of Proof

26:4. LAWSUITS OR COUNTERCLAIMS AS RETALIATIONW

26:5. ACCUSED DISCRIMINATOR CLAIMS RETALIATION

26:6. RETALIATION UNDER SARBANES-OXLEY

A. Covered Employees

B. Protected Activities

C. Administrative Complaints Procedure

D. Remedies Available to Whistleblowers