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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*
*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: rick@rickseymourlaw.net. 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 www.rickseymourlaw.com.
Many of my other CLE papers are also downloadable from this site.
Table of Contents
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A. The
Background: Recent Retaliation Decisions of the Supreme Court |
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1. Clark
County School District and Protected Activity |
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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:
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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 | 
