I will be speak­ing (and pre­sent­ing on arti­cle) on recent devel­op­ments in retal­i­a­tion under fed­er­al and West Vir­ginia employ­ment law on either Octo­ber 29 or 30, 2010 at the annu­al con­fer­ence of the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion. The con­fer­ence will be at Ogle­bay Resort and Con­fer­ence Cen­ter in Wheel­ing, West Vir­ginia. The final sched­ule is not out yet, so I don’t know whether my speech with be on Octo­ber 29 or 30.

Retal­i­a­tion law in recent years has been one of those devel­op­ing areas, and much more often than not the move­ment in the case law has been in the direc­tion of expand­ing pro­tec­tions for employ­ees against retal­i­a­tion. The US Supreme Court espe­cial­ly has focused on retal­i­a­tion law, and has “plugged gaps” in the law for fed­er­al employ­ees to include pro­tec­tion for retal­i­a­tion claims, has low­ered the thresh­old for what is action­able retal­i­a­tion, and has broad­ened the def­i­n­i­tion of “oppo­si­tion” which enti­tles employ­ees to protection.

One of the dan­gers for employ­ers from retal­i­a­tion claims is that, after an employ­ee com­plains about alleged dis­crim­i­na­tion, the employ­er may be guilty of retal­i­a­tion even if a jury decides there was no dis­crim­i­na­tion to sup­port the employee’s orig­i­nal com­plaint. An employ­ee may suc­ceed in a retal­i­a­tion claim as long as his com­plaint was made in good faith, even if the employ­ee was wrong about the com­plaint of discrimination.

In the pri­or 2 years at the annu­al con­fer­ence for WVELA, I spoke and wrote arti­cles on awards of attor­neys’ fees under employ­ment dis­crim­i­na­tion laws, and on age dis­crim­i­na­tion.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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