What is retaliation?
A retaliation claim arises when:
- An employee has a good faith basis for believing that he or she is being discriminated against on the basis of sex, race, age, or some other protected category; and
- Make a complaint about that discrimination to someone within or outside the company; and
- Suffers negative employment treatment like suspension, demotion, negative performance evaluations, termination etc. as a result of that complaint.
States are split on what an employee would need to prove to make a retaliation claim stick. Some court have held that the employee must prove that "but for" the retaliation, the employee would not have suffered the negative employment action. Other courts have held that the employee must show that the retaliation was one of several "motivating factors" which led to the negative employment action. The "but for" standard is a tougher requirement. In general, claims of discrimination are analyzed under the "motivating factor" standard established in PriceWaterhouse v. Hopkins, where the employee shows that discrimination played a role in the decision to terminate. The burden would then shift back to the employer to show that it would have taken the same negative decision anyway. The U.S. Supreme Court heard arguments in a case right on point in University of Texas Southwestern Medical Center v. Nassar on April 24, 2013. They are tasked with deciding which standard will apply, i.e. whether an employee claiming retaliation must show that the retaliation was a "motivating factor" or whether it was the "but for" or only cause of the negative employment action. (See SCOTUSBLOG.com for a more in depth discussion of counsels' arguments.) The Supreme Court's ruling will either keep retaliation claims in line with the same legal standard for discrimination claims or elevate the burden of proof, making these claims harder to prove in Court.