By Honore N. Hishamunda and Brett C. Bartlett
Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity,
Continue Reading Title VII, Section 1981, and the Limits of Protected Activity
By Christina Jaremus and Erin Dougherty Foley
Seyfarth Synopsis: When an employee violates company rules or policies, a company is within its rights to respond with appropriate corrective action. How to respond, however, can become complicated when an employee engages in legally protected activity at or around the same time as their misconduct.
On April 30, 2020, the 11th
Continue Reading What To Do When Employee Misconduct And Protected Activity Collide?
By James L. Curtis, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen
Seyfarth Synopsis: Employees who complain about safety measures to protect employees from COVID-19 may be protected from retaliation by federal and state laws. Employees who refuse to perform job functions may also be protected.
News media reports during the COVID-19 pandemic highlight
Continue Reading Whistleblower Liability for Employee Safety Complaints During the COVID-19 Pandemic
By Thomas F. Howley and Dov Kesselman
Seyfarth Synopsis: The DOL’s ARB rejected an employee’s SOX retaliation claim where he inadvertently provided information to his employer and only “hinted” that he was filing a SOX-protected complaint. The ARB seems unwilling to accept retaliation claims where the employee fails to report to, or actively conceals information from, the statutory entities under
Continue Reading ARB: No Protected Activity where Employee Inadvertently Informed Employer and Only “Hinted” at Filing Whistleblower Complaint
By Renate Walker and Erin Dougherty Foley
Seyfarth Synopsis: Plaintiffs often have difficulty producing evidence of comparators when attempting to prove unlawful discrimination because records contained in personnel files are confidential, but any attempts to gather such evidence must be lawful. An employee’s unauthorized review and disclosure of confidential personnel files, in violation of state law, was recently ruled not
Continue Reading Actions Taken in Violation of State Law May Not Be Protected Activities Under Title VII
Seyfarth Synopsis: In her appeal to the Fifth Circuit, Plaintiff Bonnie O’Daniel argues that the trial court wrongly concluded that it was unreasonable for O’Daniel to believe that a complaint about discrimination based on sexual orientation constituted a protected activity. The EEOC recently joined the fray by filing an amicus curiae brief, which argues that
Continue Reading EEOC Argues that Sexual Orientation Discrimination by a Heterosexual Person can Constitute a Protected Activity
Seyfarth Synopsis: In a recent federal case the employer has challenged the EEOC Enforcement Guidance on Retaliation taking the position that a religious accommodation request does not meet the test for protected activity under Title VII. In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation
Continue Reading Is a Request for Religious Accommodation “Protected Activity” for a Title VII Retaliation Claim?
By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: The Tenth Circuit held that a trucking company unlawfully retaliated against a truck driver after he abandoned a trailer on a public highway, finding that his actions constituted a protected refusal to operate a vehicle in unsafe conditions.
The Tenth Circuit Court of Appeals
Continue Reading Tenth Circuit Orders Truck Driver Who Abandoned Trailer on Interstate Highway to be Reinstated with Backpay