Retaliation Flashcards
How successful are retaliation claims against a motion for summary judgment?
Significantly; the plaintiff has a relatively light burden to establish the prima facie elements of the claim.
What can give rise to a retaliation claim?
Participating in an internal investigation (2009); third-party retaliation (2011); informal oral complaints (2011)
Most employment laws contain a retaliation aspect.
What is the standard for causation in a retaliation claim?
There are currently two standards under two diffferent statutes (Title VII and ADEA): “but for” causation and motivating factor
What constitutes a claim for wrongful termination?
Claims for termination in violation of public policy a/k/a wrongful discharge; usually i) claims based on the violation of a statute that expressly prohibits retaliation and ii) whistleblower claims.
What forms the basis for most whistleblower claims?
Whistleblower claims are generally premised on a statute that itself does not expressly protect whistleblowing activity or prohibit retaliation, but rather embodies a public policy that would be undermined if retaliation were not prohibited.
What are the various types of wrongful termination cases?
Typcially arise when an employer retaliates against an employee for:
i) refusing to violate a statute,
ii) performing a statutory obligation,
iii) exercising a statutory right, or
iv) reporting an alleged violation of a statute of public importance.
What types of public policy are implicated?
CA case law has held that an employee’s actions must further a policy affecting the public interest, not merely the employee’s or employer’s self-interest. Further, the policy must be fundamental and substantial (so that employers have adequate notice of the conduct that will subject them to liability). The policy must be linked to employment.
What damages are available in a wrongful termination case?
The purpose of the claim is to vindicate the public interest. Therefore, damages are not limited to those specified in an underlying statute embodying the public policy violated, but may include front & back pay, emotional distress damages, and punitive damages.
What is the statute of limitations for a wrongful termination case?
If treated as a tort action, then it should be two years in Illinois. There is no requirement that the plaintiff satisfy administrative remedies.
What is the doctrine of after-acquired evidence?
May serve as an affirmative defense for the employer, if it learns for the first time after the employee’s termination about wrongdoing that would have led to the employee’s termination regardless (e.g., lying on employment app about past felony convictions)
What constitutes retaliation under Title VII?
Under Title VII, it is an unlawful employment practice for an employer to retaliate against employees who complain of discrimination, file a charge of discrimination, or particate in an investigation/lawsuit involving alleged discrimination. Many states have enacted counterparts to Title VII.
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Many federal & state statutes have anti-retaliation provisions. The type of employer conduct that may give rise to a claim for retaliation is generally the same under the statutes, and retaliation claims are generally analyzed under the standards for discrimination cases.
What are the standards for analyzing a retaliation claim?
The plaintiff must show that:
i) he engaged in a protected activity,
ii) he was thereafter subjected to an adverse employment action, and
iii) a causal link existed between the protected activity and the adverse employment action
How does the McDonnell-Douglas burden-shifting framework apply to a retaliation claim?
After an employee has established a prima facie case, the burden of production shifts to the employer, to rebut this prima facie case by articulating some legitimate, non-retaliatory reason for the adverse employment action. The employee must then demonstrate that the employer’s articulated reason is merely a pretext for the retaliatory behavior.
What constitutes protected activity in the context of a retaliation claim?
Most statutes contain language in an opposition clause, which affords protections to employees who oppose unlawful employment practices, and in a participation clause, which affords protection to employees who participate in covered proceedings, including the filing of a charge, testifying, or assisting in an investigation, etc. Such provisions are interpreted broadly.
