Employer Retaliation (Employment Law Series)

THIS CASEBOOK contains a selection of 207 U. S. Court of Appeals decisions that analyze and discuss issues surrounding prohibited employer retaliation. The selection of decisions spans from 2007 to the date of publication. Title VII is a "precise, complex, and exhaustive" statute, Univ. of Tex. Sw. Med. Ctr. v. Nassar, U.S. , 133 S.Ct. 2517, 2530, 186 L.Ed.2d 503 (2013) , and it defines the term "unlawful employment practice" with characteristic exactitude. An "unlawful employment practice" is "discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination." Id. at 2532; see also 42 U.S.C. § 2000e-2(a) -(d) (enumerating as an "unlawful employment practice" status-based discrimination by various entities) ; id. § 2000e-2(l) (enumerating as an "unlawful employment practice" status-based discrimination in "employment related tests") ; id. § 2000e-3(a) (enumerating as an "unlawful employment practice" retaliating against an individual for opposing conduct made unlawful by, or participating in a proceeding under, Title VII) ; id. § 2000e-3(b) (enumerating as an "unlawful employment practice" the advertising of a preference for applicants based on "race, color, religion, sex, or national origin") . Cooper v. New York State Dept. of Labor, 819 F. 3d 678 (2nd Cir. 2016) . Thus, a plaintiff alleging unlawful retaliation may not recover unless he reasonably believed that the conduct he opposed ran afoul of one of these particular statutory proscriptions. See, e.g., Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir.1988) (objecting to an employer's failure to adhere to its own affirmative-action program is not protected activity, because such a failure is not an "unlawful employment practice" under Title VII) . Cooper v. New York State Dept. of Labor, ibid. A plaintiff seeking to demonstrate that he engaged in protected activity need not show that the behavior he opposed in fact violated Title VII; he must, however, show that he "possessed a good faith, reasonable belief," Summa v. Hofstra Univ., 708 F.3d 115, 126 (2d Cir.2013) , that the employer's conduct qualified as an "unlawful employment practice" under the statute, see 42 U.S.C. § 2000e-3(a) . Cooper v. New York State Dept. of Labor, ibid. Plaintiff can succeed on her First Amendment retaliation claim only if she can establish that "(1) she was engaged in constitutionally protected activity, (2) the defendant's actions caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity, and (3) the defendant's actions were substantially motivated as a response to [her] protected conduct." McBeth v. Himes, 598 F.3d 708, 717 (10th Cir. 2010) (alterations in original) (internal quotation marks omitted) . Bird v. West Valley City, ibid.