In the June 2011 issue of the ABA Journal, David L. Huston Jr. observes a trend of the U.S. Supreme Court being more favorably inclined to employment retaliation claims, than underlying discrimination claims. Of all discrimination-related charges filed in 2010, retaliation charges were up to 36.3 percent, from 27.1 percent in 2000. Some recent retaliation highlights:
- Thompson v. North American Stainless Steel (2011), Title VII's anti-retaliation provisions also prohibit retaliation exercised against people close to the employee;
- Kasten v. Saint-Gobain Performance Plastics Corp. (2011), FLSA's anti-retaliation provision applies to oral as well as written complaints;
- Gomez-Perez v. Potter (2008), employee can sue for retaliatoin under the Age Discrimination in Employment Act (ADEA);
- CBOCS West Inc. v. Humphries (2008), employee can sue for retatlation under Section 198l;
- Burlington Norther & Santa Fe Railway Co. v. White (2006), Title VII's retaliation clause covers retaliations actions beyond disciminatory actions, if they affect term and conditions of employment; and
- Robinson v. Shell Oil Co. (1997), Title VII's retaliation clause protects former as well as current employees.
In contrast, discrimination plaintiffs have suffered several setback on their underlying claims in recent years, as typified in Ledbetter v. Goodyear Tire & Rubber Co. (2007) and Gross v. FBL Financial Services (2009), both making it "more difficult for employees to pursue ADEA claims when there are mixed motives for the employer's adverse actions."
Hudson explores why this difference in treatment may exist and concludes that "relation claims are more client-specific, ... tend to be highly individualist claims," and do not involve "loaded" terms such as racist and sexist." Thus, they don't lend themselves to class actions, they are clearer cut from an evidentiary perspective, and "nearly everyone understands that an employer shouldn't try to get revenge just because someone complains of race or sex discrimination."
If you are interested in mediation or arbitration services for a discrimination or other workplace matter, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
