Fact or Fiction: Retaliation requires job-related action (e.g., firing)

 

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post”.

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday’s post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

The answer to today’s question, my friends, is fiction.

On June 22, 2006, the United States Supreme Court in Burlington N. & S.F. Ry. v. White, held that retaliation need not be job-related to be actionable. In doing so, the Court explicitly rejected the notion that a plaintiff prove that he/she suffered a materially adverse employment action in order to recover for retaliation. Rather, a plaintiff now need only demonstrate that the employer acted in such a way that was serious enough that it well might have discouraged a reasonable worker from exercising his legal rights (e.g., complaining internally about unlawful harassment, or filing a charge of discrimination with the EEOC).

On Monday of this week, the Second Circuit Court of Appeals, in this case, bench-slapped (h/t @DavidLat) a Connecticut court for its jury instruction in an FMLA action, which ignored this change in the law. The lower court had mistakenly charged the jury that retaliation requires proof of a “materially adverse change in the terms and conditions of employment.”

See also, Phil Miles’s post at Lawffice Space: 3rd Circuit: Performance Improvement Plan Not an Adverse Action.

 

Image credit: chris.pirillo.com