Retaliate this, BITCH

It's a poorly kept secret that one of my favorite areas of the law, and the area in which I sometimes wish I were practicing, is employment law. I did some a few years ago, mainly representing plaintiffs in employment discrimination cases, and not only do the cases usually involve particularly juicy facts, but the body of employment law has been in a near-constant state of flux for the last 30 years that makes it exciting but a little unpredictable to figure out where the jurisprudence will go next. (Oh yes, jurisprudence gets me hot. Sorry, that's just the way it is.)

When I interviewed at my present firm, there were positions open in both my current practice group and in the employment group. I actually interviewed for both, and was sort of leaning in my head towards doing employment work. They ended up hiring someone for that position with more experience (my background in product liability being quite extensive it was pretty natural the products group would think I was a better fit there), but I still like to keep abreast of the developments in the world of employment law. And there was a big one today.

The Supreme Court decided for the first time what the standard of proof is for a retaliation claim. I've often told people that it's not the discrimination or harassment that usually gets employers in trouble, it's the retaliation after the employee complains. It's incredibly difficult to prove discrimination or harassment--you need to have concrete evidence and able to prove things like the outrageousness of the conduct, that the employee promptly reported it, that there was tangible job detriment, etc. But it's almost natural instinct for a company to get its hackles up when an employee files a complaint or brings a lawsuit, and the sorts of things that companies do when they get their hackles up are often what get them in trouble. Reassigning employees, demoting employees, documenting every thing they do wrong when nobody else is subjected to the same scrutiny, etc....these are all the sorts of retaliation that used to happen regularly and often still does.

Today the Court ruled that all of these sorts of things can constitute retaliation sufficient to support a claim--even if they do not meet the requirements for actual discrimination or harassment. This is important because an employee could complain about something that they could not actually prove to be harassment, like they would've lost the lawsuit, but if they can prove retaliation in response to their complaints or bringing suit, they still win. You know the phrase "it's not the crime, it's the coverup?" It's the exact same concept. Retaliation is usually what gets ya.

If you want a better reasoned and more dignified discussion of the outcome of the case, you can find it here on Scotusblog.