Category Archives: Result for Employee

Result for Employee, Retaliation claims, Title VII of the Civil Rights Act of 1964, US Supreme Court

Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

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I pre­vi­ous­ly wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

National Basketball Association I want­ed to set out some addi­tion­al thoughts about Burling­ton North­ern, because it address­es an issue that has trou­bled the courts in inter­pret­ing the fed­er­al anti-dis­crim­i­na­tion laws: When is an employ­er’s con­duct seri­ous enough in dis­ad­van­tag­ing an employ­ee so that the employ­ee has a claim under the employ­ment dis­crim­i­na­tion laws? The answer is easy when the employ­er’s deci­sion affects the employ­ee’s pock­et book, like with ter­mi­na­tion, fail­ure to hire, demo­tions, and the like. The answer has been much hard­er when the employ­er’s con­duct did­n’t direct­ly affect the employ­ee’s pock­et book.

NBA ref­er­ees strug­gle with a sim­i­lar issue: where is there enough phys­i­cal con­tact on the court to jus­ti­fy call­ing a foul on a play­er. So let’s explore some par­al­lels between these employ­ment dis­crim­i­na­tion issues and the NBA’s “no blood no foul” rule.

The NBA’s “No Blood No Foul” Rule

If you watch Nation­al Bas­ket­ball Asso­ci­a­tion games, you might be struck by how much phys­i­cal con­tact there is on the court and how rarely the ref­er­ees call per­son­al fouls over that phys­i­cal con­tact. Fans of the NBA have only a par­tial­ly kid­ding way to refer to the “stan­dard” by which the ref­er­ees decide how much con­tact will result in a per­son­al foul being called. It’s the “no blood no foul” rule. In oth­er words, the ref­er­ees will allow a lot of phys­i­cal con­tact, and will only call a foul when some­one gets blood­ied as a result of the con­tact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA ref­er­ees apply, regard­less of what is writ­ten in the Offi­cial Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hur­ley-burly con­tact on the bas­ket­ball court, much of which makes it more excit­ing for the fans, that call­ing a foul for any phys­i­cal con­tact (or a low­er defined lev­el of phys­i­cal con­tact) would slow down the game for fans and make the game less enjoy­able, unrea­son­ably impede the skill of the play­ers, and makes it impos­si­bly hard for offi­cials to iden­ti­fy “con­tact”. So the appear­ance of blood is a more “objec­tive” indi­ca­tion that the con­tact real­ly mat­tered and real­ly con­sti­tut­ed an unfair inter­fer­ence with the oth­er player.

The Supreme Court Struggles With “When is There a Foul”?

Courts for years have strug­gled with the employ­ment dis­crim­i­na­tion equiv­a­lent of the “no blood no foul” rule. For the courts, assum­ing unlaw­ful dis­crim­i­na­tion occurred: when is the con­se­quence of the dis­crim­i­na­tion seri­ous enough and objec­tive­ly dis­cernible so that courts will rec­og­nize a claim and inter­vene by acti­vat­ing the court’s process and poten­tial­ly award­ing damages.

Except for sit­u­a­tions involv­ing hos­tile work envi­ron­ment, the courts have trans­lat­ed the NBA’s blood require­ment into a tan­gi­ble eco­nom­ic con­se­quence. Thus, much in the spir­it of the NBA, the courts have said eco­nom­ic harm must be demon­stra­ble as a result of dis­crim­i­na­tion, or else the courts won’t enter­tain the claim no eco­nom­ic con­se­quence, no legal vio­la­tion, case dismissed.

Con­tin­ue read­ing Analy­sis: The “No Blood No Foul” Rule. When is an Employer’s Con­duct Severe Enough to Con­sti­tute Retal­i­a­tion? →
Result for Employee, Retaliation claims, Sexual harassment, US Supreme Court

US Supreme Court Broadens Definition of “Opposition”; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1–26-09

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1/26/09: In Craw­ford v. Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty, Ten­nessee, 129 S. Ct. 846 (2009), the US Supreme Court unan­i­mous­ly ruled that an employ­ee engaged in pro­tect­ed activ­i­ty under Title VII’s retal­i­a­tion pro­vi­sion by answer­ing an employ­er’s ques­tions in con­nec­tion with a sex­u­al harass­ment inves­ti­ga­tion start­ed by com­pa­ny rumors about a male super­vi­sor. Jus­tice Souter wrote the major­i­ty opin­ion, joined by Roberts, Stevens, Scalia, Kennedy, Gins­burg, and Brey­er. Jus­tice Ali­to wrote an opin­ion, con­cur­ring in the judg­ment, joined by Jus­tice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

USSupremeCourt Here is what hap­pened: Rumors start­ed cir­cu­lat­ing about sex­u­al­ly inap­pro­pri­ate behav­ior by a male super­vi­sor, Gene Hugh­es, at “Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son Coun­ty” (“Metro”). A human resources employ­ee start­ed inves­ti­gat­ing, and asked Vicky Craw­ford whether she had seen any inap­pro­pri­ate behav­ior by Mr. Hugh­es. Craw­ford respond­ed yes, and described sev­er­al instances of sex­u­al­ly inap­pro­pri­ate behav­ior. For exam­ple, Ms. Craw­ford had asked Mr. Hugh­es “what’s up”, and he respond­ed by grab­bing his crotch and say­ing “you know what’s up”. On anoth­er occa­sion, Mr. Hugh­es grabbed Ms. Craw­ford’s head and pulled it toward his crotch. The human resources employ­ee talked to two oth­er employ­ees who sim­i­lar­ly report­ed sex­u­al­ly harass­ing behav­ior from Mr. Hughes.

Con­tin­ue read­ing US Supreme Court Broad­ens Def­i­n­i­tion of “Oppo­si­tion”; for Retal­i­a­tion Claims; Craw­ford v Met­ro­pol­i­tan Gov­ern­ment of Nashville, 1–26–09 →
Age Discrimination, Result for Employee, Retaliation claims, US Supreme Court

Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

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USPS Logo 5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­it­ed retal­i­a­tion against fed­er­al employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­er­al employ­ee sec­tion of the ADEA did not express­ly pro­hib­it retal­i­a­tion. This was a 6–3 deci­sion. The major­i­ty opin­ion was writ­ten by Jus­tice Ali­to, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Brey­er joined. Jus­tices Roberts, Scalia, and Thomas dis­sent­ed, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and old­er, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employ­ee sections”.

Con­tin­ue read­ing Supreme Court “fills in the blank” to rec­og­nize retal­i­a­tion claims for fed­er­al employ­ees under ADEA; Gomez-Perez v. Pot­ter, 2008 →
Age Discrimination, Evidence issues, Result for Employee, US Supreme Court

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

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US Supreme Court Feb­ru­ary 26, 2008: The Unit­ed States Supreme Court hand­ed down its opin­ion in Sprint/United Man­age­ment Co. v. Mendel­sohn, 128 S. Ct. 1140 (2008) (Find­Law site opin­ion). The issue in this fed­er­al age dis­crim­i­na­tion case (ADEA) was whether the plain­tiff could present evi­dence to the jury about oth­er alleged old­er dis­crim­i­na­tion vic­tims, where the deci­sion made to ter­mi­nate the oth­er indi­vid­u­als was not made by the same deci­sion-mak­er that ter­mi­nat­ed the plaintiff.

The employ­er (Sprint) con­tend­ed that evi­dence of oth­er alleged age dis­crim­i­na­tion vic­tims was not admis­si­ble where the deci­sion-mak­ers for those oth­er vic­tims were dif­fer­ent from the deci­sion-mak­ers who took action against the plaintiff.

The Supreme Court reject­ed the employ­er’s argu­ment and said that the evi­dence of oth­er vic­tims might be admis­si­ble, even if dif­fer­ent deci­sion-mak­ers were involved. The tri­al court should con­duct a “bal­anc­ing test” for admis­si­bil­i­ty of dis­crim­i­na­tion against oth­er employ­ees by dif­fer­ent super­vi­sors, where the rel­e­vance of the oth­er employ­ees’ sit­u­a­tion is bal­anced against unfair prej­u­dice to the employer.

Result for Employee, Retaliation claims, US Supreme Court

US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

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June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to employ­er’s action at the work­place, and it is not lim­it­ed to action tak­en while the plain­tiff is still work­ing for the employer.

Sec­ond: Action by the employ­er may vio­late the anti-retal­i­a­tion pro­vi­sion even if it does not cause a tan­gi­ble loss, such as pay, for the plain­tiff. The con­duct may vio­late the law if it is “mate­ri­al­ly adverse” (as opposed to “triv­ial”) to the employ­ee, and might dis­suade a “rea­son­able work­er” from “mak­ing or sup­port­ing a charge of dis­crim­i­na­tion”. So, for exam­ple, trans­fers to dif­fer­ent posi­tions, even though they involve no loss in pay or ben­e­fits or pro­mo­tion­al oppor­tu­ni­ties, might con­sti­tute unlaw­ful action because, if the trans­fer is to what a rea­son­able work­er would view as a less attrac­tive job, that might dis­suade a rea­son­able work­er from com­plain­ing of discrimination.