Articles Posted in Retaliation


An employee who claims retaliation in federal court must demonstrate they suffered treatment was “materially adverse,” i.e., something that could reasonably have dissuaded a reasonable worker from participating in a protected activity, like complaining about discrimination.

Last night, I read a decision from a federal judge in New York weighing allegations that the plaintiff’s supervisors knew the plaintiff had filed several EEO complaints and then retaliated against her.

But were the acts of retaliation “materially adverse”? Not really. No.

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A director for a major transit authority applied for two internal promotions. She didn’t get either. Feeling that she was more qualified than either successful candidate, the director reported discrimination internally and later filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission. Among other things, she alleged in the EEOC Charge that, after her internal report of discrimination, she experienced retaliation. For example, she alleged that he performance review scores went down, her workload increased, and some analysts no longer reported to her.

That’s not great. But, is it what the law considers “retaliation”?

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On August 7, 2018, a worker sent an email. The email stated, “I fear retaliation” and “my colleagues and I have been the victims of continuous harassment, both sexual and emotional.”

On August 9, 2018, just two days later, the company fired her.

How do you think that turned out? Continue reading


When a plaintiff sues, alleging a supervisor subjected them to a hostile work environment, the defendant may avoid liability — even if the harassment actually occurred — if it took prompt remedial action to protect the plaintiff. Also, if a plaintiff fails to take advantage of corrective opportunities the defendant provides, the defendant wins.

But not always. Continue reading


Employment lawyers and HR professionals generally preach that employees view “it’s not a good fit” to explain their termination of employment as code for discrimination or retaliation.

It’s HR101.

But yesterday, a federal court of appeals explained that this well-intentioned but often misconstrued rationale isn’t always a thinly-veiled, pretextual excuse to fire someone. Sometimes, people aren’t “good fits.” Continue reading


They were so bad that a federal judge applied a rarely-used rule of civil procedure to consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

Boy, that was about as witty as Groundskeeper Willie’s standup routine at Springfield Elementary.

(Note to self: take after the Clown.) Continue reading

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