Category Archives: Retaliation Claims


By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.


By: Oyvind Wistrom

Last week, the United States Supreme Court decided two highly anticipated Title VII employment cases, with both coming as significant victories for employers. Both decided by narrow 5-4 majorities, the first case distinguish between supervisors and coworkers for the purpose of vicarious liability under Title VII harassment claims. The Court held that for an employer to be vicariously liable for harassment by a supervisor, the supervisor must have the power to take tangible employment actions. The second case, which determined the appropriate standard of causation for Title VII retaliation claims, found that plaintiffs must show “but for” causation.

While both decisions were significant victories for employers, they should not drastically alter business decisions by Wisconsin employers, particularly because both decisions upheld the legal approaches currently applied within the Seventh Circuit.

“Supervisor” Status Requires The Power To Hire, Fire, Demote, Promote, or Discipline

In Vance v. Ball State University, the Court found that for the purposes of vicarious liability under a Title VII harassment claim, an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the plaintiff.

Under Title VII, an employer’s liability for workplace harassment is closely related to the status of the harasser. If the harassment is from a plaintiff’s coworker, the employer is only liable if it was negligent in controlling the work conditions. However, if the harassment is perpetrated by a supervisor the employer may be vicariously liable for the supervisor’s actions – therefore making it much easier for the plaintiff to prove liability.

In the case, Maetta Vance, an African-American substitute banquet server, claimed to have experienced racial harassment by Saundra Davis, a white catering specialist. While Davis had some authority to direct actions

within the facility, she did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance, attempting to gain vicarious liability, argued in favor of a broader definition of “supervisor” proposed by the EEOC’s Enforcement Guidance, which tied supervisor status to the ability to exercise significant discretion over the employee’s daily work.

The Court, upholding a decision by the Seventh Circuit, rejected Vance’s argument calling it “simply wrong.” Instead, the Court turned to previous decisions in Ellerth and Faragher where the term “supervisor” was adopted to describe a class of employees who “could bring the official power of the enterprise to bear on subordinates.” With the new holding, the Court explained that the reduction in ambiguity would allow all parties to be better positioned to know as a matter of law before a lawsuit began, the strength of their case – something not possible under the ambiguous EEOC guidance.

This decision should not however, be viewed as eliminating employer liability for coworker harassment. A plaintiff can still prevail by simply showing that the employer was negligent in permitting the harassment to occur. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed is all still relevant to employer liability.

Furthermore, the Court quashed any concern that this holding may be used by employers to insulate themselves from liability by empowering only a handful of individuals to take tangible employment actions. The Court explained that realistically, those individuals would have a limited ability to exercise independent discretion when making decisions, and would likely be forced to rely on other workers who actually interact with

the affected employee. In doing so, the employer would likely be held to have effectively delegated the power to take tangible employment action to the employees on whose recommendations it relies and therefore would retain similar liability.

Title VII Retaliation Claims Require “But for” Causation

In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation claims must be proved by showing that “but for” the retaliatory motive, the adverse employment action would not have occurred – rather than the reduced “motivating factor” standard associated with status-based discrimination claims.

Under Title VII, an employer is prohibited from retaliating “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.” Prior to this case, there was a split between circuits on whether an employee had to show “but for” causation, or simply that the protected activity was a motivating factor, among other factors, for the employment decision.

In the case, Dr. Naiel Nassar, a physician of Middle Eastern descent, claimed his supervisor discriminated against him based on his background. Following the discrimination Nassar sought, and received, a transfer within the hospital system, at which time he sent a letter to the medical school’s chair explaining his transfer was because of the claimed discrimination. The chair, upset over the claims and because the university and hospital had an agreement that prevented the transfer Nassar received, caused the transfer offer to be withdrawn. Nassar then sued claiming status-based discrimination and retaliation under Title VII. Because the decision to withdraw the offer was based both on Nassar’s discrimination claim in the letter, and on the agreement between the University and the hospital, Nassar argued that he only needed to show retaliation was a motivating factor.

Mirroring its prior decision in Gross v. FBL Financial (deciding causation under the ADEA), the Court found the language from the Civil Rights Act of 1991 that the plaintiff relied on to support his motivating factor argument, did not apply to retaliation claims under Title VII. The Court explained that neither the textual nor structural choices of the language could support lowering the standard of causation. Rather, Court found the term “because” implied a “but for” standard, meaning the plaintiff must establish that the unlawful action would not have occurred in the absence of the unlawful retaliation.

The holding was a significant victory for employers because it increases the burden on the employee and the likelihood of dismissal at the summary judgment stage. In coming to its conclusions, the Court explained the higher standard of causation was essential to the fair and responsible allocation of resources within the litigation system. It acknowledged that employers are experiencing an ever increasing frequency of retaliation claims and that lessening the standard could lead to more frivolous claims, ultimately diverting funds away from efforts by employers to combat workplace harassment.

If you have questions about the recent Title VII decisions, or any other issue, feel free to call Oyvind Wistrom at 414-226-4811, or any other Lindner & Marsack attorney at 414-273-3910.


By:  John E. Murray

The Affordable Care Act (ACA) created a new retaliation claim for employees.  An employee can bring a claim for retaliation if they have suffered some adverse employment action because:

  • The employee receives a subsidy to purchase health insurance;
  • The employee provides information to an employer or a government agency regarding a real or perceived violation of the ACA;
  • The employee testifies in a proceeding regarding a violation of the ACA;
  • The employee assists or participates in an investigation of a possible violation of the ACA; or
  • The employee objects to or refuses to participate in any activity, policy, practice or assigned task which the employee reasonably believes to be a violation of the ACA.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim rules establishing the procedure for bringing these claims.  First, employees must file a complaint with OSHA within 180 days of the alleged violation.  OSHA will share the complaint with the IRS, the Treasury Department, the Department of Health and Human Services, and/or any other relevant branches of the Department of Labor.

Complaints are screened to determine if the employee has made a plausible argument that retaliation has occurred.  If OSHA believes a violation may have occurred, it can issue a preliminary order reinstating the employee.  Regardless of whether such an order is issued, employers typically will have 20 days to submit a position statement.  Sixty days after filing that position statement, OSHA will issue its findings and conclusions.

If OSHA determines a violation has occurred, it can order reinstatement, back pay, compensatory damages (for emotional distress), interest on the damages awarded, attorney fees and costs.  Within 30 days, either party can file objections or a request for a hearing.  Reinstatement may be ordered even when objections have been filed.

Hearings are held before an administrative law judge.  At this hearing, the Complainant must prove that protected activity was a contributing factor in the challenged adverse employment decision.  The protected activity can be one of several factors leading to the challenged employment decision.  The employer then must prove, by clear and convincing evidence, that the same decision would have been made regardless of any protected activity.

The ALJ will issue a written decision.  This decision becomes final unless either party files objections with the Department of Labor’s Administrative Review Board (ARB).  Objections must be filed within 14 days.  The ARB has the right to accept or reject the request for review.  If the ARB does not accept the request for review, the parties can appeal the ALJ’s decision to the relevant federal court of appeals.  If the ARB reviews the decision, it must issue its own decision within 120 days after all briefs have been submitted.  The parties then have 60 days to appeal the ARB’s decision to the court of appeals.

Employees also have the right to go into federal court any time before a final decision has been issued by the Department of Labor.  Employees simply dismiss their administrative claim and pursue it in federal court.  Retaliation claims will be tried to a jury.  Employees can recover reinstatement, back pay, compensatory damages, attorney fees and costs.

The retaliation provisions of the ACA create another avenue for current and former employees to challenge discharge, discipline, or any other employment decision with which they disagree.  Because of the relatively short timeframes associated with these claims, it is critical for employers to carefully document the reasons for any adverse employment decision which affects an employee who may be engaged in activity the ACA views as protected.

If you have questions about this article, or steps you can take to minimize exposure to these retaliation claims, please call John Murray at 414-226-4818, or call any other Lindner & Marsack attorney at 414-273-3910.

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