Archives: Retaliation

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The Japanese layoff that didn’t “fly”

As I wrote in this space last year, layoffs for economic circumstances exist under Japanese law, but are exceedingly difficult to achieve without constituting wrongful dismissal. One major international airline is learning this the hard way. Three years ago, the airline terminated three Japan-based employees in connection with the closing of its call center in … Continue Reading

Two US Federal Agencies disagree as to whether Title VII as a matter of law, reaches sexual orientation discrimination

This past May, 2017, The US Court of Appeals for the Second Circuit granted en banc (meaning all the judges on the Second Circuit will hear the case instead of a three-judge panel) a review in Zarda v. Altitude Express, the case of a New York skydiving instructor who was fired from his job because … Continue Reading

Managing Political Speech In The Workplace

In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate?  Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other.  Although like the political debates themselves, the … Continue Reading

NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer.… Continue Reading

EEOC Pilots New Online Inquiry and Intake Program in Five Major US Cities

On March 13, 2017, the EEOC launched a new Online Inquiry and Intake System, making it easier for employees to seek assistance from the agency regarding claims of workplace discrimination, harassment, and retaliation. The new system is available to individuals who live within one hundred miles of the EEOC’s offices in Charlotte, Chicago, New Orleans, … Continue Reading

Ninth Circuit Expands Reach of Dodd-Frank Anti-Retaliation Protections

Adding to an existing split among the federal appeals courts, the US Court of Appeals for the Ninth Circuit ruled on March 8, 2017 that employees who make internal reports about suspected violations of the federal securities laws and other anti-fraud statutes are covered by the “whistleblower” protections of the Dodd-Frank Act (Dodd-Frank), even if … Continue Reading

2nd Circuit Sharpens Its Claws – Broadening Scope of Cat’s Paw Theory

Earlier this week, the Second Circuit Court of Appeals revived plaintiff Andrea Vasquez’s wrongful termination and retaliation lawsuit against her former employer, holding that under the “cat’s paw” theory, the retaliatory intent of any company employee – not just supervisory personnel – can be imputed to the company. The “cat’s paw” theory traces its roots … Continue Reading

EEOC Issues Long-Awaited Retaliation Guidance

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued its final “Enforcement Guidance on Retaliation and Related Issues,” which replaced the Agency’s nearly-20-year-old 1998 Compliance Manual, Section 8: Retaliation.  As the title clearly implies, the guidance primarily sets forth the Agency’s evolving interpretations of the law of retaliation.  It also focuses on the … Continue Reading

Considerations for employers when setting up an external whistleblowing hotline

This post is the product of an interview with Grant Stevens, Head of Sales, Expolink Europe Ltd http://expolink.co.uk/   What are the main considerations for employers when setting up an externally-managed hotline for the first time? Like any worthwhile venture, whistleblowing hotlines benefit from forethought and planning. A great deal will depend on the size … Continue Reading

Sixth Circuit clarifies: Demanding a supervisor cease harassment is a protected activity

On April 22, the Sixth Circuit Court of Appeals issued a decision that clarifies that, for purposes of Title VII retaliation cases, an employee’s demand that a supervisor stop his or her harassing conduct constitutes protected activity under the statute. Affirming the findings of several district courts in the circuit, the appeals court held that … Continue Reading

EEOC Internal Memo Reveals LGBT Discrimination Remains Enforcement Priority

On February 3, 2015, the EEOC’s Director of the Office of Field Programs issued a memorandum to the agency’s district directors regarding the handling of LGBT-related discrimination claims. Although Title VII does not explicitly prohibit discrimination on the basis of an employee’s identification as gay, lesbian, bisexual or transgender, the memorandum states that the EEOC … Continue Reading

EEOC Charge Filing in 2014: Number of Charges Down, Retaliation Claims Up

The U.S. Equal Employment Opportunity Commission (EEOC) has released its annual statistical report  detailing charge filing activity in 2014.  The EEOC, the federal administrative agency which investigates and prosecutes claims of employment discrimination, harassment, and retaliation under a number of employment and civil rights statutes, reported 88,778 charges filed in 2014, down from 93,727 charges filed … Continue Reading

5 lessons employers can learn from the Paula Deen Scandal

1.  Mind your tongue.  Racial slurs and comments are never appropriate in the workplace and never when used by the boss.  Failing to take action when you learn of employees at any level using racial or ethnic slurs undermines efforts to create a harassment free environment and opens the door to serious liability. 2.  Pay people fairly.  … Continue Reading

Bright-line Rules Issued by US Supreme Court in Title VII Retaliation and Harassment Cases

On June 24, the Supreme Court issued two significant, employer-friendly decisions which effectively raised the bar for employees pursing retaliation and harassment claims under Title VII. University of Texas Southern Medical Center v. Nassar In a sharply divided 5-4 ruling, the Court held in University of Texas Southern Medical Center v. Nassar, No. 12-484 that … Continue Reading

Are negligent race discrimination allegations protected by UK law?

An employer retaliating against the maker of a race discrimination complaint will be guilty of victimisation unless the complaint is untrue and made in bad faith. But what if the complaint is made negligently? Is that bad faith? A good example of a negligent race discrimination allegation appeared in last week’s London Evening Standard concerning … Continue Reading

No FLSA Retaliation For Applicants

The U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, recently held that the anti-retaliation provision of the Fair Labor Standards Act [pdf] does not apply to an unsuccessful applicant for employment.  In Dellinger v. Science Applications Int’l Corp., [pdf] a job applicant claimed that a prospective employer extended her a job offer … Continue Reading

Supreme Court Broadens FLSA Whistleblower Protection To Include Oral Complaints

As previously reported in Squire Sanders’ Sixth Circuit blog, the Supreme Court recently ruled that oral statements made to an employer regarding wage and hour violations are sufficient to trigger the anti-retaliation provision of the Fair Labor Standards Act (FLSA).  Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011).  Thus, employees are not … Continue Reading
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