The case law is replete with situations where an employee’s underlying claim of discrimination is without merit, yet the employee’s retaliation claim proceeds to trial because of actions the employer took or did not take following its receipt of a complaint of discrimination. The difficult economic times and the increasing sophistication of employees in asserting retaliation claims has exacerbated this risk as retaliation claims are among the fastest growing claims. Indeed, with respect to charges filed with the Equal Employment Opportunity Commission (EEOC) in 2010, retaliation charges were the most frequent basis. More than 36,000 of the approximately 100,000 charges filed with the EEOC in 2010 asserted retaliation as a basis.

Recent decisions rendered by the U.S. Supreme Court regarding retaliation—each of which were decided in favor of the employee—have led to much commentary that summary judgment with respect to such claims has become more difficult. This article (i) analyzes those Supreme Court decisions and the Second Circuit’s recent case law, which reflects the Second Circuit’s continued acceptance of the use of summary judgment when appropriate to bar retaliation claims from proceeding to trial, and (ii) describes the steps an employer should take to put itself in the best position should such a claim be filed.

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