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U.S. Supreme Court Reverses Expansion Trend And Raises The Bar For Claims Of Unlawful Retaliation In Employment

Claims of unlawful retaliation pose significant risks for companies in every industry. Indeed, of the nearly 100,000 Charges of Discrimination filed with the U.S. Equal Employment Opportunity Commission in FY2012, over 38% alleged retaliation. However, a recent decision from the U.S. Supreme Court has raised the legal standard that a plaintiff-employee must satisfy to prevail on such a claim. In the simplest terms, unlawful retaliation occurs when an employer takes adverse action against an employee (for example, termination, demotion, or reduced pay) because the employee exercised certain legal rights or engaged in legally-protected activity. A number of federal and state statutes prohibit retaliation against protected activities likefiling an administrative Charge of Discrimination, serving as a witness in support of another employee’s Charge, or filing aworkers’ compensation claim. Although an employer is certainly entitled to defend the underlying allegations, it cannot take action against the employee for filing the claim. When an employer does retaliate on this basis, it can expose the company to liability for retaliation, completely independent of the employee’s original complaint. In its recent June 24, 2013 decision in the University of Texas Southwestern Medical Center v. Nassar, the U.S. SupremeCourt raised the legal standard required to prove causation in retaliation cases under Title VII of the Civil Rights Act of1964, 42 U.S.C. §2000e, et seq. Although this heightened standard may not decrease the number of retaliation claimsfiled in the first instance, it should make it easier for employers to have unfounded claims dismissed before they arepresented to a jury. Like any claim involving allegedly unlawfulemployment action, retaliation claims requirean employee to demonstrate some causal connection or link between the allegedly wrongful conduct by the employer and resulting loss to the employee. In the Nassar case, the Court decided between two proposed standardsto determine whether an unlawful retaliatory motive truly “caused” the termination, discipline,or other adverse action. The first standard, known as the “but-for”standard, requires that a plaintiff show that the harm would not have occurred in theabsence of, or “but-for,” the defendant-employer’s unlawful motive. The second standard, called the “motivating factor” standard, only requires the employee to show that the employer had mixed motives – perhaps several – that led to the action, but an unlawful motive was among them. The motivating factor test is typically applied to status-based discrimination cases under Title VII for discrimination on the basis of race, religion, gender, and the like. Based upon the precise language of Title VII’s anti-retaliation provision and prior cases interpreting similar language in other statutes, the Court held that the more-demanding “but-for” test should be applied to evaluate retaliation claimsunder Title VII. This ruling is significant because, despite its conservative reputation, a number of the Court’s recent decisions in this area were extremely protective of employee rights against retaliation, both expanding the scope of what constitutes unlawful retaliation and aggressively protecting employee rights to file suit on that basis. For example, in the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court verified that unlawful retaliation is notlimited to circumstances where an employee is fired or even suffers some immediate monetary loss, but can include less drastic measures such as limited disciplinary action, and even retaliatory acts outside the workplace. In White, the Court defined retaliation broadly to include any action that would “dissuade a reasonable employee” from exercising their rights. Two years later in 2008, the Court interpreted the broad anti-discrimination prohibitionsin the Age Discrimination in Employment Act and 42 U.S.C.§1981 to include anti-retaliation prohibitions. In the cases of Gomez-Perez v. Potter and CBOCS West v. Humphries, the Court held that both statutesdid in fact outlaw workplace retaliation, despite the fact that neither statute contained an express provision prohibiting– or even addressing – retaliation. That protective trend continued in the 2011 case of Thompson v. North American Stainless, where the Court confirmed that one employee can be entitled to protection for the protected activity of a co-worker. In that case, a female employee filed a gender discrimination charge against the employer, and the company terminated her fiancé, a male co-worker. Despite the fact that the terminated male engaged in no protected activity and had no involvement with the female’s discrimination claim, the Court applied the standard from White and found that the male’s termination was unlawful, “since it might dissuade a reasonable worker from making or supporting a charge of discrimination.” The recent Nassar case is the first U.S. Supreme Court decision to limit somewhat the retaliation cause of action. Nassar does not limit the scope of what can constitute adverse action as set forth in White or Thompson, nor does it remove orlimit the ability of employees to sue for unlawful retaliation. However, the Nassar decision raises the standard of prooffor all retaliation claims under Title VII. This should limit claims to circumstances of clear retaliation where the protectedactivity was “the” cause of the employer’s retaliation, not simply “a” cause or one of many. This heightened standard should make it easier for companies to have baseless retaliation claims dismissed as a matter of law and reduce thenumber of claims submitted to a jury. Despite this heightened legal standard, employers should remain alert for potential retaliation claims and must take proactive steps to prevent them. It is important to remember that many States apply their own standards to retaliationclaims, so the Court’s recent pronouncement in Nassar will not affect the legal standard applicable to those claims thatare based on State law. There are a multitude of activities and rights that may be clothed in legal protection, including for example, filing a Charge of Discrimination, serving as a witness in support of another employee’s Charge, filing a workers’ compensation claim, military and jury service, exercising FMLA rights, union organizing and similar concerted employee activities, requesting accommodation for a disability, consulting an attorney, and the like. In order to prevent retaliation claims before they occur, it is essential that employers educate themselves and their management personnel about the various types of activities...

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Who Is a “Similarly-Situated” Comparator In a Discrimination case? Someone With The Same Supervisor?

Unlawful discrimination ultimately is about being treated less favorably because of race, religion, national origin, age, sex or other illegal factors. One way to prove unlawful discrimination is to show the person has been treated less favorably than a “similarly situated” co-worker. International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977), is the seminal case outlining claims of “disparate treatment.” As the Supreme Court noted, this is the most easily understood type of discrimination. How does one prove “disparate treatment”? Typically, one looks at whether or not the Plaintiff in the action is treated differently than someone “similarly situated.” Who is “similarly situated”? Does one look at all of the employees of the company, all the employees in a particular division, or only those employees supervised by the same supervisor? The Sixth Circuit, in Louzon v. Ford Motor Company, No. 11-2356 (June 4, 2013), reiterates the analysis to be performedin a discrimination lawsuit as to who is a “similarly-situated” comparator for purposes of determining whether a Plaintiffis “similarly situated” to those claimed to be morefavorably treated by the employer. In Louzon, the Plaintiff was a product engineer at Ford. Plaintiff took an approved leave of absence to visit relatives in Gaza. Louzon was then stranded in Gaza and requested an extended leave of absence.Ford extended the leave of absence, but by the time the Plaintiff could return to the United States, the extension had expired and Ford terminated Louzon. Louzon filed a national-origin discrimination lawsuit against Ford. At issue was who were Louzon’s“similarly situated” co-employees. The Trial Court ruled that the comparative employees must share the same supervisor. The Sixth Circuit reversed. The Sixth Circuit determined that it was important to look at multiple supervisors and employees to determine who was similarly situated to the Plaintiff employee. Louzon was one of 5,000 product engineers reporting to more than 300 managers and even fewer supervisors. The Sixth Circuit referred back to its analysis in Bobo v. United Parcel Service, Inc., 665 F. 3d 741, 751 (6th Circuit, 2012), noting that,“factors to be considered include whether the individuals dealt with the same supervisor, were subject to the samestandards, and engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or their employer’s treatment of them for it.” A Court, “should make an independent determination as to the relevancy of the particular aspect of the Plaintiff’s employment status and that of the non-protected employee.” Consequently, how a Court defines who is “similarly situated” is a key determination in defense of a discrimination lawsuit. The “similarly situated” employee may have the same supervisor, but depending on the circumstances of the position, there may also be other “similarly situated” employees. One should analyze whether there are other employees whoengaged in the same conduct, their positions and whether they were subject to the same standards. In summary, in analyzing the potential risk for lawsuit on a discrimination claim, don’t limit your inquiry of “comparable conduct” to those employees with the same supervisor. ————————————- About the Author Felix Gora is an Ohio State Bar Association Certified Specialist in Labor and Employment law. His practice is concentrated in theareas of employment, insurance, civil rights, personal injury, appellate, and aviation law. Felix’s appellate court background is a keyfactor in his selection to handle some of the most difficult procedural issues in litigation. FGora@Rendigs.com | (513) 381-9278

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Supreme Court Decides Who’s The Boss

On Monday June 24, 2013, the U.S. Supreme Court finally decided the definition of a “supervisor” for purposes of determining an employer’s strict liability for hostile work environment claims under Title VII of the Civil Rights Act of 1964.   …

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