The Retaliation Doctrine Under Title Ⅶ of U.S. Civil Rights Law: A Primer for Managers and Employees

摘要

The article offers a brief overview of Title VII and then sets forth a general description of retaliation, including the remedies for committing retaliation. We then address and explicate the specific legal elements to a retaliation lawsuit. As such, a brief introduction to the elements is provided, followed by analytical sections on such critical elements as "protected activity," "participation," "opposition," and a "materially adverse action." Next, we discuss two problem areas regarding retaliation: the necessary causal connection requirement and the situation of third-party retaliation. Employer defenses to a retaliation claim are then discussed. Legitimate defenses are compared to and contrasted with fake or pretextual ones. In conducting their analyses, the authors cover statutes, administrative regulations, case law—particularly recent case law, as well as legal and management commentary. After the legal analyses, the implications of the retaliation doctrine are discussed for employers and employees. As will be seen, establishing an appropriate corporate culture and creating a code of ethics are important features to avoiding retaliation lawsuits. Accordingly, the authors will address the preceding two important topics, and they also will provide some suggestions regarding corporate culture and ethics codes. Finally, the authors will supply additional recommendations to the employer to avoid liability and the employee to properly bring a retaliation claim.