Fact or Fiction: Retaliation requires job-related action (e.g., firing)


That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post”.

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday’s post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

* * *

The answer to today’s question, my friends, is fiction.

On June 22, 2006, the United States Supreme Court in Burlington N. & S.F. Ry. v. White, held that retaliation need not be job-related to be actionable. In doing so, the Court explicitly rejected the notion that a plaintiff prove that he/she suffered a materially adverse employment action in order to recover for retaliation. Rather, a plaintiff now need only demonstrate that the employer acted in such a way that was serious enough that it well might have discouraged a reasonable worker from exercising his legal rights (e.g., complaining internally about unlawful harassment, or filing a charge of discrimination with the EEOC).

On Monday of this week, the Second Circuit Court of Appeals, in this case, bench-slapped (h/t @DavidLat) a Connecticut court for its jury instruction in an FMLA action, which ignored this change in the law. The lower court had mistakenly charged the jury that retaliation requires proof of a “materially adverse change in the terms and conditions of employment.”

See also, Phil Miles’s post at Lawffice Space: 3rd Circuit: Performance Improvement Plan Not an Adverse Action.


Image credit: chris.pirillo.com

“Doing What’s Right – Not Just What’s Legal”
Contact Information