Category Archives: Retaliation

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.”

The ADA and the ADAAA


If you have a disability, you are protected under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.  § 12101, et seq. (1990), and the Americans with Disabilities Amendments Act of 2008 (ADAAA). These acts protect disabled but otherwise “qualified individuals” from discrimination in the workplace (employers with 15 or more employees). The ADA requires employers to provide “reasonable accommodations” that allow employees with a disability to participate in the work environment. Employers are additionally prohibited from conducting or requiring medical tests or examinations prior to a conditional offer of employment; they are also forbidden to inquire about an applicant’s impairment unless it is related to the applicant’s ability to perform “essential job functions.”

What is a “disability?” Who are “qualified individuals?”

A “disability” 42 U.S.C. §12102(1)(A) is defined by the ADA as:

  1. “a physical or mental impairment that substantially limits one or more of the major life activitiesof an individual”
    1. Substantially limits: is the individual in question more limited than members of the general population with regard to performance of a major life activity?
    2. Major life activities: bodily tasks that people typically perform daily, e.g. breathing, hearing, eating, walking, speaking/communicating, etc.
  2. “having a record of such impairment”
  3. “being regarded [or perceived] as having such an impairment” by your employer; i.e. your boss makes an adverse employment action (termination, demotion, etc.) because he/she believes or assumes that you have an impairment. Whether or not you actually have this impairment or disability is irrelevant.
  • Chronic or permanent medical conditions do qualify (e.g. speech/hearing/vision impairments, HIV/AIDS, cancer, episodic migraines, diabetes, mental illness, mental retardation, etc.).
  • Temporary medical conditions (the flu, a cold, appendicitis, concussions, broken bones, etc.) generally do not qualify as a disability.
  • Cultural, economic, and/or personality characteristics (e.g. gambling, homosexuality, etc.) are not considered impairments by the ADA.
  • A normal, healthy pregnancy is not considered to be an impairment or a disability.
  • Alcoholism is considered a disability under the ADA. Current alcoholics as well as recovering patients are both protected under this Act.
  • The ADA provides protection to former drug addicts; it does not protect workers or applicants who are currently using illegal substances. The ADA also allows for drug screening of job applicants.

The ADA defines a “qualified disabled person” as someone who falls into one of the three categories listed above but who can still perform “essential functions” of the position they have or desire to have, with or without “reasonable accommodation.” The individual must meet a requisite threshold in order to be qualified (posses proper “education, work experience, training, skills, licenses, certificates,” and other specific job requirements). If this threshold is met, then the “essential functions” of the job must be considered. These are any fundamental duties essential and necessary to a certain position; they are normally included in an employer’s written job description.

What are “reasonable accommodations?”

The purpose of this clause is to allow qualified disabled individuals the opportunity to participate in the workforce. This statute only applies to “actual disabilities,” (the first definition of “disability” given above). The employer (upon request) is responsible for providing the accommodation at his/her own expense provided that the accommodation does not create an “undue hardship” to the employer. The employer may determine undue hardship by weighing the costs (difficulty and expense) against the benefits of the accommodation in question. The employer may take into consideration his/her financial resources, the size of the company, etc.

Some examples of reasonable accommodation:

  • Reducing or modifying work schedules; allowing accrued or unpaid leave for treatment/recovery; and
  • Reassignment to a lateral position or exchanging tasks with coworkers.

Examples of non-reasonable accommodation that create undue hardship:

  • Creating a brand new position for the individual in question;
  • Lowering standards of quality or changing the manner in which a company conducts itself;
  • Hiring an additional special assistant to assist the disabled person; and
  • Providing special transportation to the workplace.

The issue of disabilities in the workplace can be complex; each case is unique and must be dealt with individually. If you feel you have been discriminated against or have received adverse treatment in the workplace due to a disability, you should file a claim with the Equal Employment Opportunity Commission or the South Carolina Human Affairs Commssion.

What does “Wrongful Termination” really mean?

Being terminated from a job is never a pleasant experience. Many people feel their dismissal was unfair or they feel they have been wronged. When tensions are high and accompanied by a wide range of emotions, it may be difficult to determine what the next step is. However, just because you feel your discharge was unfair or unjust does not necessarily mean you have a legal case against your employer.

Wrongful termination, discharge, or dismissal occurs when an employer fires an employee for a reason that violates state or federal anti-discrimination laws, public policy, or a pre-established employment contract, which can be created by virtue of employee handbooks in some cases.

This means that even though you may not agree with the circumstances regarding your termination, it still may have been legal for your boss to fire you. Since South Carolina is an “at-will employment” or “right to work” state, you may be fired (or you may quit) for any reason. In the case Shapiro v. Massengill, the court stated that “employers can discharge at-will employees for no reason or even for a bad reason.” Unless the reason you are being terminated is in violation of public policy, federal or state law, or an employment contract, it is legal for your employer to fire you. Unfortunately, this does not always lead to results that most people, particularly employees, would consider to be “fair.”

Examples of potentially legally acceptable reasons for termination:

  • You got into a heated argument with your boss that ended with him/her saying, “You’re fired!”
  • You weren’t getting along with a certain coworker; he/she did not get fired. You did.
  • You were late to work because you had a flat tire.
  • You missed work for a few days because you had the flu and forgot to let your boss know.
  • You constantly used profanity in the workplace but didn’t think anyone noticed or cared.
  • You were playing on your personal cell phone while you were supposed to be working.

Exception: If you were provided an employee handbook that contains “clear, specific, and mandatory” guidelines for termination and lacks a proper legal disclaimer stating that it is not intended to create a contract between you and your employer, then your employer’s right to discharge you at-will may be altered. This is usually a complex issue; an attorney can help you determine whether such a contract exists.

If you suspect that the reason you were fired had to do with discrimination (gender, age, race/ethnicity/national origin, religion, and/or disability/pregnancy) or was in retaliation to you taking a course of action against such discrimination, you should file a complaint with the Equal Employment Opportunity Commission and contact an employment law attorney immediately.

Age Discrimination in Employment Act (ADEA)

What is the ADEA?

The Age Discrimination in Employment Act of 1967, 29 U.S.C.  §§ 621-634, et seq. (1967), protects older workers from discrimination in the workplace.  Discrimination has historically been based on “inaccurate and stigmatizing stereotypes“or prejudices concerning older workers’ competence, productivity, and efficiency in the workplace. Section 4(a)(1) of the Act states: it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions ,or privileges of employment, because of such individual’s age.”

Who is protected by the ADEA?

Individuals age 40 and older. No provisions are made for claims of “reverse age discrimination” for younger employees.

Exceptions to the ADEA:

  • Any person elected to state or local public office or any person chosen by the elected official to be a part of his/her personal staff, including advisers
  • Firefighters and law enforcement officers
  • Independent contractors
  • Any position where an employer can show that age is a “bona fide occupational qualification reasonably necessary to the normal operation of a particular business,” or BFOQ. The employer must demonstrate that the person(s) in question cannot safely or efficiently perform their job due to being over forty years of age.

Is my employer covered under the Act?

Most public and private employers with 20 or more employees are covered under the ADEA, as well as unions with more than 25 members and employment agencies.

How do is age discrimination proven under the ADEA?

1.    Demonstrate that you are an employee covered under the Act.

2.    Demonstrate that you were fired or suffered other adverse/discriminatory employment action by your employer (who is covered under the Act).

3.    Demonstrate that age was the determining factor in the decision to terminate (“but for” age, you would not have been terminated).

A claim needs to be filed with the EEOC within 180 days of the alleged unlawful act. Employees filing charges with the EEOC for age discrimination or employees complaining directly to their employer about age discrimination are protected from retaliation under the ADEA’s Anti-Retaliation Provision.

What Kind of Notice Does an Employee Have to Provide to an Employer to Take FMLA Leave?

The FMLA causes confusion among both employers and employees, partly due to the notice requirements that it mandates for both employees seeking to take FMLA leave and for employers that have an employee asking to take leave for reasons that may fall under the protection provided to the employee by the FMLA. To complicate things even more for both employees and employers, new legislation and regulations affecting the FMLA became effective in January 2008 and January 2009, respectively.

This discussion will deal with the notice requirements that an eligible FMLA employee must provide to his or her employer in order to be placed on FMLA leave. This discussion assumes that the employee is an eligible employee under the FMLA and that the employer is an eligible employer under the FMLA.

Time Requirements for an Employee’s Notification of the Need for FMLA Leave

An employee’s obligation to provide notice of the need for FMLA leave differs depending upon whether the forthcoming leave is foreseeable  or unforeseeable in nature. If the leave is foreseeable, such as most leaves are for pregnancy or necessary, but not emergency surgeries, then the employee must provide the employer at least 30 days advance notice before FMLA leave is to begin. It is always a good idea for an employee with the need for foreseeable leave to consult with his or her employer before actually scheduling the medical treatment, if at all possible, so that the treatment can be scheduled for a time when it would not unduly disrupt the employer’s business and operations. If the employee fails to give 30 days notice of foreseeable leave and provides no reasonable excuse for his delay in providing notice, then the employer can delay the employee’s leave for 30 days after when notice is actually provided. This can be a risky course of action for the employer, however, because the employer must make sure that all proper notices of the employee’s right to FMLA leave were provided to the employee in order to delay the leave.

In cases of unforeseeable leave, where providing 30 days notice is not practicable, because of a lack of knowledge of approximately when the leave will be required to begin, a change of circumstances, or a medical emergency, then notice must be given by the employee as soon as practicable. For example, an employee’s health condition may require leave to begin earlier than initially anticipated before the birth of a child, such as in situations where there are unexpected complications related to a pregnancy before the child is actually due. In these situations, employees must give the employer notice of the need for leave “as soon as practicable” – clearly not a black and white guideline. Essentially, “as soon as practicable” means as soon as practical and possible, taking into account all of the surrounding facts and circumstances of the particular case and the particular employee’s condition and reason for leave. Typically, this can be accomplished where the employee provides the employer with notice of the need for leave within the same time frame as he would be required to do so under the employer’s regular guidelines for taking sick or medical leave. In the case of a medical emergency requiring leave, however, advance notice may not be required at all as it would simply be impossible to provide under emergency circumstances.

The Content of the Employee’s Notice of the Need for FMLA Leave

In addition to the time requirements, an employee must provide the employer with sufficient and proper notice of his need for FMLA leave. At a bare minimum, an employee must provide at least verbal notice sufficient to make the employer aware that the employee needs leave that would qualify as FMLA leave, and the anticipated timing and duration of the leave. Essentially, the employee must provide enough information about his need for leave and reasons for needing to take the leave to allow the employer to determine whether or not the requested leave should be classified as FMLA leave.

While the employer must provide sufficient information regarding the reason for his absence, courts have held that an employee does not have to specifically mention or reference the FMLA in connection with his request for leave or specifically state to the employer that he would like to assert his right to take FMLA leave. In other words, there are no magic words required – only that the employee provide enough information to inform the employer that the need for leave would likely qualify as FMLA leave. On the same note, an employee’s failure to comply with an employer’s formal policy (typically contained in an employee handbook), will not prevent the leave from being FMLA protected leave.

In the case of leave for an employee’s own medical condition, the employer may further inquire into the nature of the serious health condition and may even request a medical certification from the employee’s physician to support the employee’s need for leave. An employee has an obligation to respond to an employer’s questions if they are for the purpose of determining whether or not the requested leave is FMLA-qualifying.