National Employment Lawyers’ Association
Fall 2008 Seminar
Chicago, Illinois
October 17-18, 2008

Representing Workers in Harassment & Retaliation Claims: U.S. Supreme Court Takes on Retaliation Actions

By Richard T. Seymour*

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*Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W., Suite 900, Washington, D.C. 20036-4129. Telephone: 202-862-4320. Cell: 202-549-1454. Facsimile: 800-805-1065. e-mail: [email protected]. Some of the information in this paper is used with permission from an upcoming edition of Richard T. Seymour and John F. Aslin, Equal Employment Law Update (Bureau of National Affairs, Washington, D.C., 2006), copyright © American Bar Association, 2006. For copies, contact BNA at 1-800-960-1220; members of the Labor and Employment Law Section are entitled to a 25% discount as a benefit of Section membership. Mention priority code EQL in order to receive the discount.

This paper can be downloaded from Many of my other CLE papers are also downloadable from this site.

Table of Contents

  • A. The Background: Recent Retaliation Decisions of the Supreme Court
  • B. The Foreground: Upcoming Retaliation Decision
  • C. Other Recent Cases Affecting Retaliation Cases
    • 1. Sprint v. Mendelsohn and Other Instances of Unlawful Conduct
    • 2. Ash v. Tyson Foods and Barring Knee-Jerk Rules
    • 3. U.S. v. Arvizu and the Holistic Approach
    • 4. Miller-El and Barring Mere Excuses
      • a.The 2005 Decision
      • b.The 2003 Decision
  • D. Framing Future Cases for Success, in Light of the Past


A. The Background: Recent Retaliation Decisions of the Supreme Court


1. Clark County School District and Protected Activity


Clark County School District v. Breeden, __ U.S. __, 121 S. Ct. 1508, 85

FEP Cases 730 (2001) (per curiam), rejected the plaintiff’s claim of retaliation for having complained about a single remark made by a co-worker with respect to a sexually-related statement made by an applicant she and the other team members were reviewing, and her supervisor’s chuckle over the remark. The Court held that, even assuming arguendo the correctness of the Ninth Circuit’s holding that a plaintiff is protected by Title VII’s retaliation clause if she reasonably believes the conduct she complained about was a violation of Title VII, no one could reasonably believe that the conduct here was in violation of Title VII:

No reasonable person could have believed that the single incident recounted above violated Title VII’s standard. The ordinary terms and conditions of respondent’s job required her to review the sexually explicit statement in the course of screening job applicants. Her co-workers who participated in the hiring process were subject to the same requirement, and indeed, in the District Court respondent “conceded that it did not bother or upset her” to read the statement in the file. . . . Her supervisor’s comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker’s responding comment; and the chuckling of both are at worst an “isolated inciden[t]” that cannot remotely be considered “extremely serious,” as our cases require

The Court also held that there was no evidence of a causal link between the defendant’s learning of the plaintiff’s EEOC charge and her transfer four months later. “Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines prev