Employment Law Lookout

White House Comes Down With Paid Sick Leave Bug — Obama Backs Federal Law

Posted in Absence Management & Reasonable Accommodation

By: Johanna T. Wise and Joshua D. Seidman

Last week, the momentum gained by mandatory paid sick leave laws in 2014 carried the conversation to the White House as President Barack Obama announced his renewed support for a federal bill known as the “Healthy Families Act” (“Act”) (S. 631/H.R. 1286).  The Act, which was introduced in 2013, is still far from becoming law given Republican control of Congress.  If passed, however, the Act would require many private employers to provide employees with one hour of paid sick time for every 30 hours worked, with a minimum accrual requirement of 56 hours of leave per year.  Specifically, the Act applies to (a) employers that employ 15 or more employees for each working day during at least 20 workweeks in either the current or preceding calendar year, (b) any person who acts, directly or indirectly, in the interest of an employer, and (c) public agencies.

Interaction With State and Local Paid Sick Leave Laws

As we previously reported, in 2014 the total number of mandatory paid sick leave laws in states and cities around the country increased from five to 21.  Notably, the Healthy Families Act’s 56-hour minimum accrual requirement is more demanding than many of the existing state and municipal paid sick leave laws.  For instance, California’s paid sick leave law requires employers of all sizes to allow covered employees to accrue at least 48 hours of paid sick leave per year, while Massachusetts’ paid sick leave law requires employers with 11 or more employees to provide up to 40 hours of paid sick leave per year.

The Act expressly states that it will not “be construed to supersede (including preempting) any provision of any State or local law that provides greater paid sick time or leave rights.”  Accordingly, employers subject to an existing paid sick leave law would be required to comply with the most pro-employee aspects of both the Healthy Families Act and the applicable state or local law.

Key Provisions of the Healthy Families Act

Use and Carry Over of Sick Time: Under the Healthy Families Act, employees would begin earning paid sick time at the start of their employment, and could start using accrued time 60 days thereafter.  The Act also mandates that employers allow employees to carry over accrued, but unused sick time from one year to the next.  Despite the carry over, employers would still not be required to allow an accrual of more than 56 sick leave hours in any single year.

As with many of the current paid sick leave laws, employees would be able to use paid sick time for absences related to their own physical or mental illness, injury, or medical condition, or the need to obtain professional medical diagnosis or care, or preventive medical care.  In addition, paid sick time could also be used for:

  • An absence to care for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, who has a physical or mental illness, injury, or medical condition or the need to obtain professional medical diagnosis or care, or preventive medical care; and, in the case of someone who is not a child, is otherwise in need of care; and
  • Certain absences resulting from domestic violence, sexual assault, or stalking.

Payment at Termination: When an employee’s employment relationship ends, whether by termination, resignation, retirement, or otherwise, the employer has no obligation to reimburse the employee for accrued, but unused sick time.

Notice and Scheduling: Paid sick time shall be provided upon the oral or written request of an employee.  An employer can require seven days’ advance notice if an employee’s need for sick leave is foreseeable.  If the need for sick leave is unforeseeable, however, the employer may require an employee to give notice as soon as practicable.

Medical Certification: Employers can require an employee to provide a medical certification issued by a health care provider if the leave period covers more than three consecutive workdays.  The employee must submit such certification within 30 days after the first day of the leave period, but employers are not to delay the leave because they have not yet received the certification.

Confidentiality: Employers cannot disclose or otherwise breach the confidentiality of medical information obtained about an employee or his or her family members.  As with other medical records, this information must be maintained in a separate file from other personnel information.

Notice and Posting: Employers will need to post a notice describing certain requirements of the Act in a conspicuous place or in employee handbooks.  Violation of this requirement may result in a civil fine of up to $100.

Prohibited Acts: Employers cannot interfere with, restrain, or deny an employee’s exercising of his or her rights under the Act.  In addition, employers cannot discriminate or retaliate against an employee for exercising such rights.

Record Retention: Employers must also maintain records pertaining to compliance with the Act.

Enforcement: If passed, employees will have a private right of action in any Federal or State court of competent jurisdiction against an employer for violating the Act.  Employees may be entitled to damages, including wages, salary, benefits or other compensation lost due to the violation, and equitable relief, such as employment, reinstatement, and promotion.

What This Means for Employers

In response to the fluid landscape of paid sick leave laws, employers are wise to review their current policies and ensure that they comply with the requirements of any applicable laws.  Moreover, while the Healthy Families Act is unlikely to advance in the near future, President Obama’s endorsement and his plan to include $2.2 billion in funding to assist states develop leave programs certainly add more fuel to an already burning fire, making it even more essential for employers to remain aware of paid sick leave developments in 2015.

For additional information on paid sick leave laws, contact the authors, any member of Seyfarth’s Absence Management and Accommodation Team, or your Seyfarth attorney.

Health Insurance, Profit Sharing, Paid Vacation … Egg-Freezing?

Posted in Diversity, Retention & Pay Equity, Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

In an interesting development, a number of large employers have begun to offer to pay for employees to freeze their eggs (aka ova (the female reproductive cell)).

There is merit to the notion. According to the Centers for Disease Control and Prevention, one-third of couples where the woman is 35 years or older have fertility problems. “Aging not only decreases a woman’s chances of having a baby but also increases her chances of miscarriage and of having a child with a genetic abnormality.”

An NBC report on this topic indicates that, when successful, egg freezing allows women to “put their fertility on ice” until ready to become a parent. Egg freezing also provides a vehicle for “leveling the playing field” between men and women: “Without the crushing pressure of a ticking biological clock, women have more freedom in making life choices, say advocates.”

In today’s highly stressful and highly competitive jobs market women have career expectations and demands. These expectations continue even as their biological clocks tick away.  Although women freeze their eggs for many different reasons, one common bond they may share is the desire to have children in the future. “Waiting is the new normal,” says egg-freezing advocate and patient forum, Eggsurance.com.

But the procedure comes at a steep price, with the costs typically around $10,000 for every round, plus $500 or more annually for storage. Having the flexibility and the encouragement from a willing employer may well be the inducement for professional women to freeze their eggs while they climb the corporate ladder and seek to establish their careers.

Certainly, the debate rages whether or not employees who defer having children, — either by simply waiting, or by freeze their eggs — are more likely to advance through the corporate culture than those who choose to raise children mid-career.

However, Business Insider asks an alternate question — does an “egg-freezing employee benefit” send  the wrong message to female employees. “Something about offering to pay women to freeze their eggs for career purposes seems to be a slippery slope.”

  • First, it conveys that the only way to succeed in the corporate America “mold” is by not having a family. Many professionals may decide not have children at all if they think that is what’s necessary to be successful in their careers.
  • Second, the policies may scare women into believing that if they do choose to have children in mid-career, they will have no opportunity to move up the corporate ladder.

Importantly, the U.S. Equal Employment Opportunity Commission has announced that it will focus on “pregnancy-related limitations” as part of its current strategic enforcement plan. Though it is early to say what impact the egg-freezing benefits will have at companies that have already decided to offer this benefit, the EEOC may not view the development as entirely positive.  It is also too early to identify any type of statistical or even anecdotal evidence as to the type of trend or impact such a policy may have on a company’s promotional landscape.

While the philosophical and legal questions may be interesting, employers need to proceed with caution as they investigate any type egg-freezing option, and any changes and additions or subtractions from their employee benefits packages. What is legal and allowable may produce unintended consequences, and unwanted legal liabilities.

For additional information on workplace policies, diversity, retention, and pay equity issues, contact the authors, any member of Seyfarth’s Workplace Polices and Handbooks Team, or your Seyfarth attorney.

New Parental Leave Law Extends Massachusetts Maternity Leave Act To Men

Posted in Workplace Policies and Processes

By: Daniel B. Klein and  Carolyn B. French

On January 7, 2015, during one of his final days in office, Governor Deval Patrick signed into law the Parental Leave bill, which amends and replaces the Massachusetts Maternity Leave Act (“MMLA”) and greatly expands its scope.

The most significant aspect of the new law is that it extends to men the eight weeks of job-protected leave for the birth or adoption of a child previously available only to female employees under the MMLA.  This expansion eliminates an inconsistency between the MMLA and an interpretation of the law announced by the Massachusetts Commission Against Discrimination (“MCAD”) in 2008, indicating that employers who provide such leave to female employees only, and not to male employees, would likely violate state and federal anti-discrimination laws even though acting in compliance with the MMLA.

The new law also provides that where an employer allows an employee to take parental leave for a period lasting longer than eight weeks, the employee retains his or her right to job reinstatement and other benefits for the duration of the leave, unless the employer clearly informs the employee in writing prior to the start of the parental leave and prior to the start of any extension of that leave that taking longer than eight weeks of leave will result in denial of reinstatement or a loss of other rights or benefits.  This mandate overrides a contrary decision by the Supreme Judicial Court in 2010 in Global Naps v. Awiszus, in which it held that the protections of the MMLA only applied during the first eight weeks of a maternity leave.

The law provides that if both parents work for the same employer, they will only be entitled to an aggregate of eight weeks of leave for the birth or adoption of the same child.  The new law also extends parental leave to cover the placement of a child with an employee pursuant to a court order.  Employees are generally required to provide two weeks’ notice of an intention to take parental leave, unless for reasons beyond their control such notice is not possible, in which case notice must be provided as soon as practicable.  Employers maintain the discretion to decide whether the parental leave is paid or unpaid, subject to the employer’s other paid leave policies.

Employers are required to keep posted in a conspicuous location a notice to employees describing the parental leave law and the employer’s policies relating to the new law.

The new law takes effect on April 7, 2015.  Massachusetts employers with six or more employees should review their parental leave policies to ensure that they comply with the requirements of the new law, while larger employers should be careful to comply with their obligations under the federal Family and Medical Leave Act as well.

Executive Order Increases Minimum Wage For Illinois Government Contractors

Posted in Workplace Policies and Processes

By: Marc R. Jacobs

On January 12, 2015, during his final hours in office, and without any notice or fanfare, Pat Quinn issued Executive Order 7, establishing a minimum wage of $10.00 per hour for all Illinois state government contracts. The full text of the Executive Order is available here.

The Preamble of the Executive Order states that Illinois’ current minimum wage of $8.25 per hour is “insufficient to provide a living wage” and indicated that the increase was in response to the November 2014 advisory referendum where Illinois voters supported an increase of the State’s minimum wage to $10 per hour.  Quinn sought an increase in the minimum wage during his final weeks in office, but the Illinois Legislature refused to take up the proposal.

Effective immediately, all solicitations by any state agency must include that vendors and their subcontractors pay a minimum wage of $10 per hour, and any pending solicitation must be amended to include the $10 per hour minimum wage.  Further, all State contracts must include the new minimum wage.  The only exception is that the Executive Order does not apply to contracts arising out of solicitations in which all proposals have already been received by the State.  In addition, if a home rule municipality has established a minimum wage higher than $10 per hour, then the higher minimum wage will apply.

There is no public word yet on whether Governor Bruce Rauner, who took office on January 12 soon after the Executive Order was issued, will rescind it.

OSHA-Related Documents: Creation And Retention

Posted in OSHA Compliance

By Mark A. Lies II and Ilana R. Morady

As most employers are aware, OSHA inspections typically involve a request for the employer to produce certain documents. In many cases, employers are unsure of what documents the compliance officer is entitled to see and copy. Employers can also be unsure of how long to retain certain documents required under OSHA. Some OSHA regulations require a specific retention period for documents. Other OSHA regulations, however, do not (although it is often advisable to retain certain documents even if retention is not technically required).

This is to point you to our primer on this topic, “OSHA-Related Documents: Creation And Retention.” The extensive article is intended to give general guidance for numerous OSHA areas.

Remember that it is critical that an employer control the flow of information during the inspection, including the information contained in documents.  By avoiding production of documentary evidence that is not required by law, the employer reduces the potential for regulatory citations. It is also critical that employers understand what documents they are required to create and retain.

Even when an OSHA standard does not specify how long certain records must be retained, it is advisable to consider retaining such records for a significant length of time. For example, many OSHA standards require employee training, but do not necessarily require documentation of training or retention of training documents. Nonetheless, it is advisable to prepare and retain training documents for the duration of employment because training documents are often indispensable in asserting certain defenses to citations.

Federal Court Split Continues Over Who Qualifies as a “Whistleblower” Under Dodd-Frank

Posted in Whistleblower

By: Christopher F. Robertson

As we have reported previously, federal courts are currently split on the question of whether the anti-retaliation provisions of the federal Dodd-Frank Act (DFA) apply to employees who disclose their employer’s alleged securities violations to company officials but do not report the claimed violations to the Securities and Exchange Commission (SEC).  Just in May 2014, for example, district courts in New York and Nebraska held that a communication with the Commission is not required, but a Florida district court ruled otherwise.  On December 4, 2014, this split—not only among the federal courts nationally, but also within the Southern District of New York itself—was confirmed in Berman v. Neo@Ogilvy LLC, No. 1:14-cv-523-GHW-SN (S.D.N.Y. December 4, 2014).

Sarbanes-Oxley Act of 2002 (“SOX”) and DFA 

SOX prohibits retaliation against employees who communicate alleged wrongdoing to the SEC or to anyone “working for the employer who has the authority to investigate, discover, or terminate misconduct.”  The section in DFA entitled “Protection of Whistleblowers” permits a civil action for an adverse employment action injuring a “whistleblower” employee who (i) provided certain information to the SEC, or (ii) assisted the SEC in a proceeding relating to the information, or (iii) made disclosures of the information “that are required or protected under” SOX.

While there is no dispute regarding whether a report to the SEC is a prerequisite to a “whistleblower” claim under SOX, the same is not true with regard to DFA.  The confusion arises because the definition of “whistleblower” in the DFA is limited to an “individual who provides . . . information relating to a violation of the securities laws to the Commission.”  Thus, unless the employee passes the initial test of being a “whistleblower” as defined in the statute, those courts reading the statute as unambiguous have concluded that the employee does not fit within the gatekeeping definition and cannot bring a claim.  On the other hand, certain courts have concluded that the statute is not as clear, and, applying a Chevron analysis, have deemed it appropriate to defer to the SEC’s interpretation of the statute, contained in SEC Rule 21-F-2.  Rule 21-F-2 expresses the SEC’s view that DFA “whistleblower” claims are not precluded where the only reporting was internal to the employer, and the employee concedes that he or she never made any report to the SEC.  The SEC rule states that “the statutory anti-retaliation protections apply to . . . [among other people] individuals who report [prescribed wrongdoing] to persons and governmental authorities other than” the SEC.

The Berman Decision

In Berman, the plaintiff alleged that he reported to his employer a number of transactions that he reasonably believed to be violations of “policy, law, and GAAP,” “WPP policies,” and “Sarbanes-Oxley, Dodd-Frank and U.S. Securities Laws.”  Plaintiff claimed that defendants fired him after he made his concerns known to them.  The plaintiff, however, conceded that he did not report any of his concerns to the SEC before the defendants took the actions that plaintiff claims were retaliatory.  The Court concluded that the employee was not a “whistleblower” under the statute.

In reaching this conclusion, the Court noted that the DFA defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”  The Court concluded that the definition unambiguously provides that, in order to qualify as a whistleblower, an individual must report information to the Commission.  The Court reasoned that its reading makes sense in the context of the financial bounty provisions of the Act, noting that “it is hard to imagine how the Commission would pay a financial award to a whistleblower who never reported information to the Commission.”  The Court also noted that the same defined term is used in the anti-retaliation provisions of the Act.

The Court rejected the plaintiff’s argument that the statute is ambiguous, and refused to defer to the SEC regulations purporting to define the term, as some other courts had done previously.  See, e.g., Egan v. TradingScreen, Inc., No. 10 Civ. 8202, 2011 WL 1672066, at *5 (S.D.N.Y. May 4, 2011); Kramer v. Trans–Lux Corp., No. 3:11 Civ. 1424, 2012 WL 4444820, at *4 (D. Conn. Sept. 25, 2012).  Instead, the Court adopted the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013).  In Asadi, the Fifth Circuit held that “the plain language of the Dodd-Frank whistleblower-protection provision creates a private cause of action only for individuals who provide information relating to a violation of the securities laws to the SEC.” Id. at 623.  In agreeing with the Asadi court’s statutory interpretation, the Berman Court noted that it is the exception, not the rule, for Congress to grant an individual a private right of action to sue for damages arising from retaliation without requiring that individual to make contact with a federal agency first, and noted that other contemporaneous whistleblower statutes included such requirements.  The Court further noted that it is well-established that courts should be extremely reluctant to extend a private right of action in such a manner in the absence of clear intent by Congress.  By adopting the Fifth Circuit’s interpretation of the Act in Asadi, the Court stated that it avoided this pitfall.

The Berman Court’s decision confirms that the split among the federal courts regarding Dodd-Frank’s scope shows no signs of slowing down, and appears that this issue is ultimately headed for the United States Supreme Court.

Illinois Becomes First State To Adopt Mandatory Retirement Savings Law

Posted in Workplace Policies and Processes

By: Marc R. Jacobs

On January 4, 2015, Governor Quinn signed into law the Illinois Secure Choice Savings Program Act.  With this law, Illinois becomes the first state to mandate a retirement savings plan for private sector employees.  The Governor stated that this law responds to the problems resulting from the fact that 1/3 of Illinois retirees rely on Social Security for 90 percent or more of their retirement income.  The stated purpose of the law is “promoting greater retirement savings for private-sector employees in a convenient, low-cost, and portable manner.”

The law applies to private sector employers with 25 or more employees that have been in business for more than two years.  Under the law, all employers subject to the Act must provide a retirement savings program for its employees (such as a 401(k) Plan) or auto-enroll employees through payroll deduction in the to-be-created Illinois Secure Choice Savings Program (“Program”).  The Act mandates the initial (or default) contribution by the employee to be three percent of the employee’s earnings.  The funds will not be part of the state treasury and will be held as portable, individual retirement accounts in the names of the participants.  Once an employee is enrolled, the employee may opt out completely, or change the contribution amount.  Employers that do not provide a retirement savings plan or participate in the Program will be subject to an annual fine of $250 per employee.

The Act is effective on June 1, 2015; however, because of the work necessary to create the Program (including appointment of the Board of Trustees (“Board”) that will manage the Program and the need to select investment providers), implementation of the Program and enrollment of employees will begin within 24 months of the effective date, and the employer mandate will not begin until the Board opens the program for enrollment.

Although Illinois is the first state to adopt this law, proposals are in various stages of consideration in several states including California, Connecticut, Maryland, Massachusetts, Minnesota and Oregon.

If you would like more information, please contact your Seyfarth Shaw LLP attorney or Marc R. Jacobs at mjacobs@seyfarth.com.

Retaliation is the New Discrimination Under the National Labor Relations Act.

Posted in NLRB

By Charles F. Walters

This blog recently discussed the upswing in EEOC retaliation charges and what employers can and should do about this undeniable trend. A National Labor Relations Board (NLRB) case now before the D.C. Circuit Court of Appeals on appeal provides a powerful reminder that non-union employers must also be concerned about retaliating against employees for exercising their NLRA rights.

It’s no secret that more and more non-union employees having turned to the NLRB – and with plenty of success – for help when being terminated or subjected to other employer treatment with which they disagree. The current NLRB’s expansion of what constitutes “protected concerted” activity under the NLRA has made it much easier for employees to allege and ultimately prove they were disciplined for exercising their NLRA rights. In fact, from protecting employee criticism of their employers on social media, to striking down countless seemingly innocuous handbook policies, to prohibiting arbitration agreements with class action waivers, the NLRB has been an accommodating, cost-free forum for employees feeling aggrieved by their employer.

This phenomenon is evidenced by the NLRB decision earlier this year finding that Virginia-based Inova Health System violated the NLRA when firing a nurse because she engaged in protected concerted activity – some of which took place four years before her termination. The NLRB reached this result despite the employer terminating the nurse only after a detailed human resources investigation of multiple workplace hotline complaints revealed that she had created a hostile work environment, shared unwelcome details with colleagues regarding her sex life and regularly used unwelcome profanity at work. The NLRB also found that another nurse who engaged in protected concerted activity along with the terminated nurse later was unlawfully denied a promotion as a result this activity, while a second nurse was found to have been unlawfully suspended for her overly aggressive treatment of a human resources manager while engaged in protected concerted activity.

So, what should a non-union employer do in the face of this new reality?

First, employers must know the ever-changing contours of what constitutes protected concerted activity under the NLRA, which means keeping abreast of the regular NLRB decisions that establish these contours. Second, all managers involved in employee discipline and other policy enforcement – including human resources personnel – should be trained on the NLRA the same way they are trained on civil rights and other employment laws. Third, disciplinary decisions must be scoured for any employee protected concerted activity underlying, or even arguably underlying, the discipline. Fourth, employee handbooks and any other personnel policies should regularly be reviewed for NLRA compliance given that the mere existence of a policy that an employee reasonably believes prohibits NLRA-protected conduct is unlawful.

If you would like more information about this topic or preventative training options to guard against NLRA violations, then please contact the author or your Seyfarth attorney.

DOJ Extends Protection To Employees Based On Gender Identity

Posted in EEOC, Workplace Policies and Processes

By Laura J. Maechtlen and Craig B. Simonsen

Attorney General Holder announced this week that the U.S. Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.

In a memorandum released by the U.S. Department of Justice, “Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964,” Attorney General Holder concludes that “after considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”

In the memo, Holder informed all Department of Justice Component Heads and United States Attorneys that the Department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.  In doing so, Holder reverses a previous Department of Justice position on this topic.

The memo clarifies the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals.  Note, however, that the Department of Justice does not have authority to file suit against private employers.  Nevertheless, as our loyal readers know, various legal protections exist for employees in the private sector, including for employees of government contractors (see our recent post related to developments impacting federal contractors here and here).

The following graphics provide an abbreviated glance at two U.S. maps that provide detail on states in which there are nondiscrimination laws to protect people based on sexual orientation and gender identity, and those states that recognize leave of absence rights for employees. Please see the full infographic for the full sized maps, and other related detailed charts.

In response, employers, especially those with facilities and branches in these highlighted states, will be well served to ensure that their policies, procedures, and processes are updated to ensure no differential treatment based on sexual orientation and gender identity/expression.

Is Retaliation The New Discrimination??

Posted in EEOC, Workplace Policies and Processes

By: Clark Smith

Retaliation claims are now the most common type of claim filed with the EEOC.  Twenty years ago, only 15% of the charges complained of retaliation.  By 2013, that total had leapfrogged to 41% (yes that number includes charges brought under federal whistleblower statutes, such as Dodd-Frank – but that’s a big jump), and is higher than race (35%), sex (29%), or age (22%).  But what is causing this jump, and how do we combat this upward trend in retaliation claims?

A few thoughts to ponder:  For one thing, employers (and society-at-large) have simply become better at not discriminating against people for status-based reasons (such as race and age), leading to fewer status-based discrimination charges (that’s a good thing!).  For another thing, plaintiffs’ attorneys are great at finding ways to “bundle” a retaliation claim with an underlying discrimination claim (that can be a bad thing!).  Just have the plaintiff identify a single bad thing that occurred at work after he or she complained to the boss about mistreatment, and a Title VII retaliation claim is born (but let’s not “go there!”).

Maybe the main reason for the rise in retaliation claims is the perception that these are just easier cases to sell to juries.  Traditional discrimination claims can be difficult to sell to juries (and hard for a plaintiff to prove) because folks do not like to believe that their bosses are bigoted or sexist.  But it easier to tell a story about someone who complains at work all the time — and then for what the plaintiff calls “retaliation” and claims management punished him for complaining in the first place.  In that sense, retaliation claims have broader, more intuitive appeal to a jury than do standard discrimination claims.

Does it matter that retaliation claims are held to the higher causation standard (think “burden of proof”) than their Title VII cohorts?  Maybe so, but maybe not.  In its 2013 Nassar v. UT Southwestern decision, the Supreme Court held that Title VII retaliation claims require proof of “but-for” causation, which is harder for plaintiffs to prove than the “motivating factor” standard that applies to Title VII discrimination claims.  The distinction might make a difference in the pre-trial pleadings that are filed (like a summary judgment brief) and may account for more retaliation cases being dismissed before trial as a result.  Indeed, the sample size of retaliation cases proceeding to trial since Nassar is still too small to predict any obvious trends or patterns.  But as commentators have suggested, the fight over “but-for” vs. “motivating factor” could be a distinction without a difference when it comes to convincing a jury.

What does the rise in retaliation claims mean for employers?  Retaliation is harder to spot and to prevent than traditional discrimination claims (because it can take on many forms, can be harder to prove that necessary link, but also harder to prove that it didn’t happen).  EEO training tends to focus on what everybody already knows — don’t fire an employees for being too old, or Hispanic, or for following a strange religion.  Retaliation (and what it can look like) needs to be addressed thoroughly as part of your anti-harassment/non-discrimination training and all managers and employees need to be reminded that retaliating against someone who made a complaint (or treating someone differently after they’ve complained about discrimination or harassment) is grounds for disciplinary action as well.

If you don’t have an anti-retaliation policy, then implement one immediately.  If you already do, then make it part and parcel of your anti-discrimination policy.  Let management know that retaliation is illegal discrimination, and that it cannot be tolerated.  Document the anti-retaliation training so that you can show, down the road and if necessary, what meaningful steps you took to prevent the retaliation.  Finally, consider making retaliation counseling a routine part of each EEO investigation.  If Employee A makes a claim of age discrimination against Manager B, then be proactive with Manager B regarding the company’s legal and ethical obligations to not retaliate against the complainer.

If you would like more information about this topic, or if you’d like to discuss preventative training options to guard against retaliation, harassment, or discrimination, please contact the author or your Seyfarth attorney.