Beer and pizza, Fred Astaire and Ginger Rogers, discrimination suits and retaliation claims. Certain pairings just seem inevitable. While the first will give you a full stomach, and the second an aesthetic high, the last pairing is becoming the most dangerous of employment claims. And recall that retaliation claims under Title VII and state discrimination statutes, such as the Texas Commission on Human Rights Act, come not just in one, but two flavors: a complaint about alleged unlawful practices (“I didn’t get the raise because of my sex”) and participation in investigation or litigation of the complaint (“in my opinion, the manager who didn’t give her the raise is a sexist”). When an employee suffers an adverse employment action after opposing or participating, a retaliation claim is born.
In 1996, the 5th U.S. Circuit Court of Appeals, in a 2-1 decision in Long v. Eastfield College, held that an employee can claim retaliation, even if what the employee is complaining about doesn’t violate the law, as long as the employee comes within a country mile of protesting unlawful discrimination. So, close counts, just like with hand grenades and horseshoes. And employees who merely participate in the investigation or litigation process have even more protection. They can say just about anything they want — even if it’s “fabricated” (the 4th Circuit’s word in its 1994 opinion in Kubicko v. Ogden Logistics Svcs., not mine) — and still be engaged in conduct protected by the law’s anti-retaliation provisions.
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