Anyone who has had the task of informing an executive that he or she must defend a discrimination charge understands why almost all protective employment laws contain an anti-retaliation provision. Counsel must ensure that the executive does not indulge even a subconscious urge to get even. While demotions, failure to promote, and outright firings have always been held to be “adverse employment actions,” the U.S. Supreme Court recently clarified that any employer act, even an act outside of the workplace, that is “materially adverse,” i.e., would deter an objectively reasonable person from pursuing statutory rights, is unlawful retaliation, provided that there is a nexus with the employee’s known statutorily protected activity, Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006).
The Court cited the filing of unfounded criminal charges as an example of retaliatory employer conduct which could occur outside the workplace. One previously unsettled issue that Burlington Northern has done little to clarify is whether an employer’s civil lawsuits or counterclaims might constitute retaliation.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
