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.

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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.

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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”.

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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.