By Eric B. Meyer
What makes retaliation the most common discrimination claim in America?
I suspect it’s because other forms of discrimination (e.g., race, gender, disability) are more difficult to prove and don’t always result in an adverse employment action, such as termination of employment. And since most people like to keep their jobs, they’re more reluctant to rock the boat.
Conversely, retaliation always includes adverse action — quite often a firing — and follows what the law terms a “protected activity” (opposition to discrimination or participation in the statutory complaint process). So, you have a situation where an employee suspects discrimination is afoot, complains about it, and then gets fired.
Court to decide on proof needed to claim retaliation
Retaliation salt rubbed in an open discrimination wound.
So, any Supreme Court ruling affecting the standard for proving retaliation is big news.
Last Friday, the United States Supreme Court agreed to decide what level of proof a plaintiff must establish to prevail on a retaliation claim. Here is the question presented to the Court:
Whether Title VII‘s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).”
To date, various Courts of Appeal are divided 3-2 on this issue.
Having done this for a while now, let me tell you that if an employee’s good-faith internal complaint of discrimination or a Charge of Discrimination filed with the EEOC at all factors into your decision to act against an employee, make sure your litigation budget is teeming with Mr. Green.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.