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Discussion Group Summary: Trends and Developments in Anti-Retaliation Law

Summary Provided by Michael Green (Texas A&M)

Discussion Group Summary: Trends and Developments in Anti-Retaliation Law

Nicole Porter (University of Toledo Law School) led a rousing scholarly discussion of workplace law trends regarding anti-relation law amongst eleven faculty members with expertise in the subject as part of the first program in the SEALS Workshop on Labor and Employment Law held Wednesday, August 2 from 3 to 6 p.m.  Porter started off explaining her longstanding interest in retaliation matters tracing back to her time as a practitioner.  She noted how it has resonated with her since discovering that employees are much more willing to admit that they retaliated than conceding to discriminatory workplace behavior.  She asked the nine other faculty members in the discussion group to introduce themselves and talk about the important concerns they were facing regarding matters of ant-retaliation law in the workplace. Brief snippets of that discussion is discussed below.

Richard Carlson (South Texas College of Law Houston) started the discussion by referring to anti-retaliation protections for employees under the common law and mentioned specific questions raised by Texas law regarding its Sabine Pilot standards for protected employee conduct as a matter of public policy. He raised questions about the ongoing definitions of what activities may be protected from employer retaliation under law and looking at the laws of other states with broad protections for employees, possibly New Jersey.

Jarod Gonzalez (Texas Tech) raised the question of distinguishing retaliation from whistle blowing activities.  He also suggested the need for clarity in identifying how and where employees may clearly seek satisfaction when subjected to a retaliatory action by an employer.  Gonzalez also explored the possibility of how training may or may not be able to effectively eliminate more retaliatory employer actions.

Kerri Stone (Florida International) discussed how she raises the implications of retaliation law with her students. She provides statistical information to her students about the increasing number of retaliation claims and some anecdotal information suggesting that retaliation claims may be more successful than other types of workplace discrimination claims. She then asks them to think about and explore the reasons for this phenomenon regarding retaliation claims by focusing on three areas of questioning:  1) Are there more retaliation claims arising because of matters in our public and private lives that are fostering an environment for such claims? 2) Maybe, the increase in retaliation claims and beliefs about the success of these claims is merely perception and not reality and if so, what is driving that perception? and 3) if nothing has really changed regarding environmental factors, could there other reasons why employees are more willing to pursue these claims. Is this related to how more open employees are about acknowledging their retaliatory actions. Stone also talked about the existence of a whistle blower tour and how she was able to get the tour to come talk to her class and how the tour could engage broader student departments at a university.

Marcia McCormick (Saint Louis) used the facts from a well-known Supreme Court case, Desert Palace v. Acosta, to highlight the many aspects of how workplace discrimination can arise.  She lamented the slicing and dicing of analytical frameworks to limit the scope of discrimination and in the case of Acosta, the aspects of how her male co-workers retaliated against her as the sole female in the workplace.  Acosta faced disparate treatment, harassment, and retaliation. McCormick noted how the Supreme Court failed to even capture these aspects of the case and how she found most of those facts in a lower court opinion. Although she is not sure of a solution to this problem, she wanted to bring it forward for discussion with the group.

Jeff Hirsch (North Carolina) discussed the unique aspects of addressing retaliation in the public sector as well as concerns about protections under the First Amendment.  He referred to the benefits of job security and how that may affect the dynamics with respect to retaliation and how public sector entities may seek creative ways to retaliate against public sector workers. He also raised the problem of how many actors do not understand retaliation or whistle blower law.  Even after the implications of retaliation law are explained, those seeking to retaliate may not be willing to change their actions.  This response can lead to unusual complexities for public sector employees and their employers in dealing with retaliation and First Amendment protections.

Scott Bauries (Kentucky) noted that he is interested in looking at the implications from the Supreme Court’s decision in Hefernan v. City of Paterson.  In Hefernan, the Supreme Court granted protection to a public sector employee from being discharged or demoted because the employee supports a particular employee candidate even when the employer was mistaken about the employee’s support for the political candidate.  Bauries raised questions about how the analysis in Hefernan regarding an employer’s mistaken belief could apply in private sector retaliation cases under federal anti-discrimination law.  Anti-relation law requires protected activity for the employee to bring a viable retaliation claim.  Bauries highlighted an interest in examining how the constitutional protection for employees from mistaken belief retaliation in Hefernan might reasonably translate to private sector workplace analysis.

Paul Secunda (Marquette) raised concerns related to his ongoing criticism of the Supreme Court’s 2006 decision in Garcetti v. Ceballos which prevents public sector employees from receiving First Amendment protections from employer retaliation when those expressions are made as part of their professional duties.  While still believing very vehemently that Garcetti was wrongly decided, Secunda also raised concerns about an issue left open from Garcetti, whether its reasoning would also apply to a public sector employee’s speech related to teaching and scholarship.

Michael Green (Texas A&M) criticized the handling by lower courts of the Supreme Court’s 2001 retaliation decision Clark County School District v. Breeden. In Breeden, the Supreme Court rejected a retaliation claim because the underlying complaint of harassment was not considered protected activity based upon reasonable belief. While noting that a single incident may not usually be sufficient to establish a harassment claim, Green criticized the extension of this analysis to assessing the validity of retaliation claims based upon reasonable belief.

Alex Long (Tennessee) discussed his analysis of how the law regarding retaliation has developed in a similar fashion to the law regarding disability discrimination.  He suggested that courts have an orientation that results in a desire to develop a framework that accommodates employer discretion in handling workplace issues. To accomplish this goal, courts will read the terms of a statute narrowly whether it be the definition of disability or the scope of activity covered by anti-retaliation provisions.  With disability law, the only way that this narrowing of the terms of the statute was limited occurred through action by Congress to the amend the ADA.  Long suggested that ongoing concerns about any continued limiting of the scope of retaliation law may have to follow the same path.

After hearing all of these matters discussed, Porter then talked about her own research involving comparing retaliation decisions under the ADA before and after its most recent amendments.  At this stage, Porter is not sure if that research is leading to any clear findings and her goal may end up in focusing on a descriptive analysis of the issues involved with retaliation under the ADA which appears to be an underdeveloped component of scholarly analysis.  Porter also made several suggestions to some of the anti-retaliation law topics raised by the other discussion group participants.  Those suggestions led to a very robust discussion among all the participants about what opportunities could be developed to better address retaliation concerns in the workplace.

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