Retaliation Claims Can Drive You Nuts!

By Fiona W. Ong - Shawe Rosenthal LLP

September 21, 2022

As many employers sadly know, those retaliation claims can be more problematic than a discrimination or harassment claim. Federal and state discrimination laws protect employees not only from discrimination or harassment, but also from retaliation for opposing discrimination/harassment, or making a charge/complaint, testifying, assisting, or participating in any way in a discrimination proceeding, such as an investigation or lawsuit. Often an employer successfully defends against an underlying claim of discrimination, only to lose on the retaliation claim.

The standard for establishing a claim of discrimination is rather high, and federal courts have typically required some showing of pretty substantial harm in order to sustain a discrimination claim under Title VII and other federal antidiscrimination laws. Some courts require an “ultimate employment decision” like hiring, firing, promotion, leave or compensation, while others permit claims based on conduct a little short of that – but it still must be significant. Similarly, in order to sustain a harassment claim, the conduct in question must be more than simply “incidents of rudeness or insensitivity.”

That is in contrast to the conduct that supports a retaliation claim, which encompasses a broad range of actions, including things that may appear quite petty – but have a material impact on the employee. The U.S. Supreme Court set out the standard for assessing retaliation claims in Burlington Northern & Santa Fe Railway Co. v. White, holding that employers are prohibited from taking employer actions that would be “materially adverse” to a “reasonable” employee or applicant, meaning that such actions are likely “to deter victims of discrimination from complaining to the EEOC, the courts, and their employers.” The  Supreme Court acknowledged that “normally petty slights, minor annoyances, and simple lack of good manners” that are experienced by all employees are not materially adverse, but also noted that the significance of any particular action would depend on the circumstances. And a recent case gives us a good example of just how, well, nutty it can be.

In Villalobos v. Basis Educational Group LLC, an employee complained about her supervisor’s racist comments about her and other people. The employee alleges that her supervisor knew that she had a nut allergy and, less than a month after the employee’s complaint, the supervisor ate a nut bar while standing over the employee’s desk, threw the wrapper away in the employee’s trash can, and then tried to type on the employee’s laptop. The employee then suffered an allergic reaction, ending up in urgent care. In response to the employee’s subsequent retaliation claim, the employer argued that the supervisor’s actions were not the type of conduct that would support such a claim as a matter of law, and the claim should be thrown out prior to trial. Unfortunately for the employer, the federal district court disagreed, finding that the employee’s allegations about supervisor’s (deliberate? malicious?) action of exposing the employee to a known allergen was sufficient to sustain the retaliation claim.

I think we can all agree conduct that ends up with the employee in medical care is really not a trivial matter or petty slight. And, if intentional, the retaliatory action was certainly a creative one – but nonetheless illegal. Bottom line, a supervisor who has been accused of discrimination or harassment must be particularly careful to treat the complaining employee in a professional manner, consistent with how they treat other employees. Don’t go nuts!