Civil rights laws in the United States focus principally on protecting who a person is, meaning an employee’s immutable status, such as race, gender and age. But the new focus in litigation is not on status but on conduct, looking more at what employees do than who they are.
Look at a decision by the 6th U.S. Circuit Court of Appeals, Nisswander v. Cincinnati Insurance Co . According to the court’s 2008 opinion, Cathy Nisswander worked as a claims adjuster for Cincinnati Insurance. Another employee had brought an Equal Pay Act claim against the company, and Nisswander was invited to opt in as a plaintiff. She did. That is when the trouble started. She believed her employer was retaliating against her for opting in. One of the plaintiff’s lawyers in the Equal Pay Act suit sent a letter requesting that Nisswander send documents dealing with the Equal Pay Act claim. Nisswander misunderstood and sent company materials she believed related to her inchoate retaliation claim.
