Retaliation
| Author | Laura M. Franze |
| Pages | 399-426 |
26-1
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 Post-Burlington Northern
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
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
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