"But for" standard applies to retaliation claims

The Supreme Court has decided retaliation claims under Title VII require proof of "but for" causation establishing a confusing reality for trial judges and jurors making factual findings in cases involving discrimination claims and retaliation claims. Its confusing enough for attorneys. Now a finding of discrimination must be supported by the conclusion discrimination was a "motivating factor" while a finding of retaliation must be supported by a finding it was the "but for" cause for the adverse action.

Union organizer pines for EFCA

This account of a California organizing attempt has not turned out well for one of the employees involved.

Retaliation requires employment

The Fourth Circuit, in a divided opinion, holds an applicant for employment who is denied employment  after the prospective employer learned that she had sued her former employer under the FLSA is not an employee subject to the anti-retaliation provisions of the FLSA. A strongly worded dissent by Judge King relies upon, Robinson v. Shell Oil Co., a Title VII decision in which the Supreme Court held employers who retaliate against former employees who engaged in protected activity stated a Title VII retaliation claim. In both cases the issue was whether the statute extended protection in a context where the adverse action was taken against a non-employee. Given the Supreme Court's handling of recent retaliation cases, I think this one might get a look-see.

No FLSA retaliation claim available to prospective employees

The Fourth Circuit, in a divided opinion, holds the retaliation protections of the Fair Labor Standards Act apply only to current and former employees of an employer, not prospective employees. In Dellinger v. Science Applications International the majority finds this result compelled by the statutory language. Relying on Robinson v. Shell Oil Co., 519 U.S. 337 (1997) which held a former employee can state a retaliation claim under Title VII for conduct occurring after termination of the employment relationship, the dissent argues the Plaintiff states a claim. Money quote after the jump.

Turn up the heat

Does an employer have the right to turn on heat lamps directed at workers picketing in 99 degree weather? I think we are going to find out.

Illinois jury awards $95 million to employee

A national retail employer Aaron Rents, Inc. recently lost a suit (complaint here) involving allegations of assault, battery, negligent hiring, negligent retention, negligent supervision, negligent investigation of a sexual harassment claim, negligent repair, intentional infliction of emotional distress, retaliation, sexual harassment. The allegations of the complaint provide an excellent checklist of what to consider and avoid in responding to employee harassment complaints. The allegations are enough to outrage a lot of potential jurors. Seems the 20 year old female plaintiff was subjected to months of unwanted attention from her store manager and gifts that were accompanied by inappropriate requests, one allegation involves the store manager. One alleged incident involved the manager sneaking up behind her as she was sitting on the floor and banging his penis on her head. Another allegation involved the manager grabbing her, throwing her to the floor, pulling up her shirt to expose her chest and masturbating to ejaculation on her chest. When plaintiff complained her complaints were not adequately investigated and she was retaliated against according to the allegations of the suit. Various legal caps may reduce the jury award to $43 million.

Formality rejected

In a divided opinion, (Breyer) the Supreme Court has decided that a written complaint is not a necessary prerequisite to a retaliation claim under the Fair Labor Standards Act. The Court refused to decide whether the complaint must be filed with  a court or the government, (as dissenters Scalia and Thomas urged) because the Employer did not raise the issue in its Petition for Certiorari. Nevertheless, much of the reasoning in the majority opinion would support the position that an internal complaint would also be protected by the anti-retaliation provisions.

Third Party retaliation claims under Title VII approved by Supreme Court

The Supreme Court has decided an important retaliation case, and again has broadly construed Title VII's protections against retaliation. In Thompson v. North American Stainless, LP, No. 09-291 the employee claimed he was fired because his fiancee had filed a sex discrimination charge against their common employer. More after the jump.

Res judicata does not bar subsequent retaliation claim

The 11th Circuit just decided an interesting FLSA retaliation case. The plaintiffs filed suit  concerning overtime violations. Subsequently, after the initial suit was filed, the plaintiffs filed a second suit alleging retaliation occurring after the filing of the original claims. Because there was no amendment or subsequent pleading asserting the second claim in the first suit, disposition of the first suit did not bar the second suit as res judicata.

SCOTUS accepts third party retaliation case for next Term

Retaliation against an employee who complains about discrimination is unlawful. But when a female complains about discrimination and the subsequent adverse action alleged is taken against her husband or boyfriend is the victim of a third party reprisal protected? The Fifth Circuit has long held no, they are not. On the last day of the Term, the Supreme Court granted Cert. in Thompson v. North American Stainless LP, No. 09-291. Thompson was fired after his fiancee complained about discrimination. More after the jump.

Mixed Motive retaliation lives

A divided Fifth Circuit panel has ruled that a mixed motive instruction in a Title VII retaliation case is appropriate, does not require direct evidence to support it, and is not inconsistent with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 23 43 (2009). The majority opinion (Reavely and Wiener) is a must read for practitioners in the Fifth Circuit. It presents the past and present law of the Circuit in a straightforward, understandable opinion. The dissent (Jolly) notes the decision conflicts with the Seventh Circuit's ruling in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).