Retaliation and the Reasonable Person

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation. Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence that her complaint caused the negative consequence, some judges refuse to call the employer’s conduct legal retaliation. This growing body of retaliation harm jurisprudence is surprising. Under existing U.S. Supreme Court precedent, a worker suffers an adverse action if the negative consequence would dissuade a reasonable person from complaining about discrimination. Yet, lower courts routinely dismiss cases by ruling that consequences such as threatened termination or negative evaluations would not dissuade a reasonable person from filing a discrimination complaint. In doing so, courts are making factual determinations about what reasonable people think. Using empirical evidence, this Article demonstrates that these factual determinations are incorrect. This Article then explores how structural and substantive features of retaliation law and judicial decision-making skew retaliation law in a narrow direction

Retaliation and the Reasonable Person

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation. Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence that her complaint caused the negative consequence, some judges refuse to call the employer’s conduct legal retaliation. This growing body of retaliation harm jurisprudence is surprising. Under existing U.S. Supreme Court precedent, a worker suffers an adverse action if the negative consequence would dissuade a reasonable person from complaining about discrimination. Yet, lower courts routinely dismiss cases by ruling that consequences such as threatened termination or negative evaluations would not dissuade a reasonable person from filing a discrimination complaint. In doing so, courts are making factual determinations about what reasonable people think. Using empirical evidence, this Article demonstrates that these factual determinations are incorrect. This Article then explores how structural and substantive features of retaliation law and judicial decision-making skew retaliation law in a narrow direction

Harassment: A Separate Claim?

In 2017, media attention focused on sexual harassment as victims reported harassment and assault as part of the #MeToo movement. Although many of the accounts focused on sexualized treatment, this treatment often occurred within a broader context of unequal treatment, such as pay inequality and the disproportionately low promotion rate of women into leadership positions. For decades, legal scholars have noted the interplay between broader work constructs and harassment. This Article argues that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court\u27s jurisprudence surrounding harassment. Unfortunately, this error represents the dominant view among federal appellate and district courts and has profound consequences for the reach of harassment law. This Article argues that harassment is not, and never was, intended to be a separate claim under Title VII. It does so by showing that the history of discrimination law is plagued with procedural ambiguity. The Supreme Court has regularly used civil-procedure words like proof burden, and claim inartfully. This inexact use has resulted in decades of confusion. In several instances, the Supreme Court has stepped in to clear up the procedural confusion. When doing so, it often interprets federal discrimination law in ways that are procedurally distinct from the dominant paradigm existing at the time. This Article provides an overview of a number of instances in which the Supreme Court has done this. Harassment law is equally due for the same procedural clarification. Consistent with current Supreme Court jurisprudence, courts can and should clarify that harassment is not a stand-alone claim

Feminist Judgments and the Rewritten Price Waterhouse

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail. The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in which Price Waterhouse made its decision. She embraces an enhanced role for experts to assist the courts in how discrimination occurs. Professor Chamallas also explicitly recognizes that bias may occur even when a particular decisionmaker does not express overt bias. However, there are many more contributions that are worth mentioning

Harassment: A Separate Claim?

This article argues that harassment is not a separate claim under Title VII by reviewing the history of discrimination law, examining Title VII\u27s statutory language, and Supreme Court cases and procedural ambiguity in harassment law. It discusses the pitfalls of identifying harassment as a separate claim, and recommends how plaintiffs might plead harassment within the scope of Title VII

The New Calculus of Punitive Damages for Employment Discrimination Cases

To determine whether a punitive damages award is constitutionally excessive, courts are required, among other things, to consider the ratio of compensatory to punitive damages. No longer is the total sum of remedies the only relevant calculation in determining whether an award is excessive. The numbers the judge decides to use in the ratio comparison also become important, in many cases determining whether excessiveness review is even warranted. Owing in part to the complexities of the employment discrimination remedies regime, courts make numerous errors when undertaking the required comparison in the employment discrimination context. When conducting the excessiveness calculus, some judges fail to value back pay and front pay, resulting in an exaggeration of the difference between the harm to the plaintiff and the awarded punitive damages. Likewise, judges often ignore the value of nonmonetary equitable relief awarded to the plaintiff. Additionally, little consideration has yet been given to how the division of damages across legal theories or causes of action affects the excessiveness inquiry. While some of these problems result from courts\u27 failures to properly reconcile the specialized remedies regime of Title VII with the excessiveness inquiry, others point to more fundamental issues with the constitutional inquiry itself. Hinging that inquiry on numbers that can easily be manipulated leads to serious questions regarding whether the inquiry actually and appropriately tests excessiveness. This article describes the analytic red herrings that may confuse courts conducting an excessiveness review, uses these missteps to illustrate fundamental flaws with excessiveness review, and suggests ways to minimize mistakes. Part II of this article provides an overview of the Supreme Court\u27s jurisprudence on the constitutional review of punitive damages and describes relevant aspects of the Title VII remedies regime. Part III describes some of the errors courts have made and may make when applying punitive damages review to employment discrimination awards. Part IV explores ways to avoid these mathematical and conceptual missteps and discusses remaining ambiguities in the Supreme Court\u27s test for evaluating punitive damages. This article concludes in Part V

Co-Worker Evidence in Court

This symposium explores ways to empower workers. Many employment laws rely on workers filing private rights of action to enforce the underlying substantive law. Unfortunately, when workers file these claims in court, courts often do not allow them to rely on evidence from their co-workers. While courts regularly allow employers to submit co-worker evidence of a plaintiff’s poor performance or lack of qualifications, they often diminish or exclude a plaintiff’s co-worker evidence that the plaintiff performed well or possessed desired qualifications. This Article identifies and explores this evidentiary inequality. It argues that efforts to empower workers must include the power to support one another in litigation and that courts should be careful about rejecting plaintiffs’ co-worker evidence, while relying on similar evidence offered by employers

The Emerging Statutory Proximate Cause Doctrine

The year 2011 marked the birth of a new idea. The United States decided Staub v. Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phrase entails

Evidentiary Inequality

Federal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims. This Article draws from hundreds of cases to show how judges favor the employer\u27s evidence and disfavor the plaintiff\u27s evidence across multiple dimensions, such as time, witnesses, documents, relevance, and reliability. Judges have created a host of named doctrines that severely restrict the evidence plaintiffs are allowed to use to prove their discrimination claims. At the same time, a host of unnamed, and thus invisible, doctrines and preferences further bias the evidentiary record in favor of the employer. The cumulative weight of the named and invisible doctrines make it difficult for plaintiffs to prove discrimination. This evidentiary inequality is court created and is not required by or contained within the federal discrimination statutes. This Article argues that judges must create clear rules that guard against this evidentiary inequality