Does “Zone of Interest” Retaliation Require Employment?

Darrell VanDeusen
Darrell VanDeusen
02/10/2020
In her blog post of January 27, 2020, my partner Bernadette Hunton reported on the EEOC’s charge statistics in the 2019 fiscal year.  According to the EEOC, nearly 54% of the 72,675 charges filed in fiscal 2019 included a retaliation component. Now, this percentage may be somewhat meaningless.  A charging party need only check the box on a form to raise a claim, regardless of whether the actual elements of retaliation exist (i.e., a good faith...
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Timing Is Not Enough - Retaliation Claim Fails For Employee Fired Nine Days After Filing A Complaint

Randi Klein Hyatt
Randi Klein Hyatt
01/03/2020
An IT company analyst was not entitled to have a jury decide if he was fired in retaliation for complaining about race discrimination as he claims, versus the performance issues that his former employer identified.  Mr. Eyad Asi worked for Information Management Group (IMG) as an analyst and was assigned by IMG to work on a specific contract at Fort Meade, Maryland.  The contract on which he worked was managed on-site by Absolute Business Solutions...
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Maryland Federal Court Finds Employee’s Reassignments Not Adverse Employment Action

Andrea Murphy
Andrea Murphy
12/04/2019
The U.S. District Court for the District of Maryland recently denied relief to an employee of the Wicomico County Department of Corrections (WDCD) who claimed that she faced unlawful discrimination via several department reassignments and disciplines.  Passwaters v. Wicomico County, No. 1:18-CV-02923 (D. Md. 11/27/19). Passwaters worked as a Correctional Officer for WCDC.  She was promoted to Master Correctional Officer and offered a position in...
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Eleventh Circuit Finds Employer’s “Not a Team Player” Comment Not Proof of Retaliation

Andrea Murphy
Andrea Murphy
11/06/2019
A recent decision out of the Eleventh Circuit demonstrates how easily an employer’s purportedly negative comment made closely in time to an employee’s legally protected activity can form the basis of an allegation that the employer unlawfully retaliated.  Jacomb v. BBVA Compass Bank, No. 18-11536 (11th Cir. 11/4/19) (unpublished). Jacomb was hired as a Senior IT Project Manager for BBVA Compass Bank (BBVA).  A few years later, she received a...
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“No, Thank You,” is Not Protected Activity

Darrell VanDeusen
Darrell VanDeusen
09/13/2019
Ok, students in my employment discrimination law class, here’s a pop quiz.  “Would you like to go grab dinner with me?” said the boss to his subordinate employee.  “No, thanks,” responds the employee, “I don’t believe in mixing business with pleasure.”   A few weeks later, the employee is reassigned or terminated.  Was the employee’s rejection of a dinner offer stated opposition to sexual harassment that qualifies as protected...
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Documentation of Performance Issues Defeats Employee’s Claims of Retaliation

Andrea Murphy
Andrea Murphy
07/31/2019
Employers may find it concerning when their employees with performance issues also complain of workplace discrimination.  A recent decision out of the Eastern District of Virginia illustrates how progressive discipline, documentation of employee work performance problems, and investigation of employee workplace complaints can help protect employers in the long run.  Gooding-Williams v. Fairfax County School Board, No. 1:18-cv-01177 (E.D. Va....
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Separation Code That Raises Red Flags Can Constitute Post-Settlement Retaliation

Bernadette Hunton
Bernadette Hunton
07/29/2019
When serious problems in the workplace arise, a settlement and release that allows the employer and employee to go their separate ways often presents as an attractive resolution.  The employee can separate neutrally to look for a more suited work environment, while the employer can move on without fear of litigation.  Unless of course the agreement fails to properly address prospective employer inquiries, in which case an employer may well find...
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Fourth Circuit Holds That Employer’s Shifting Story Is Evidence Of Pretext

Andrea Murphy
Andrea Murphy
04/26/2019
To prevail in an employment discrimination case, the plaintiff is required to present evidence of pretext by his or her (former) employer.  What exactly does pretext mean, though, at a practical level? The Fourth Circuit Court of Appeals recently explored this concept in holding that a former trash truck driver was entitled to go to trial based on sufficient evidence that his former employer’s proffered reason for terminating him was a pretext...
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Some Fun Facts About The EEOC's 2018 Charge Data

The EEOC released its 2018 charge statistics earlier this week.  Here are three key pieces of information to consider: Charge filings have decreased.  In 2018, the EEOC processed 76,418 charges, which represents more than a 9% decrease from 2017, a nearly 17% decrease from 2016, and a 23.5% decreased from the all-time high year of charge filings in 2010 (99,922 charges).   Because charge filings tend to flow with the relative strength of the...
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Losing Out On Voluntary Overtime Chances Can Be Tangible, Adverse Action.

Employers are by now well-versed in the concept that under Title VII, an employer is strictly liable for a supervisor's harassment when the harassment results in a tangible employment action.  The obvious employment actions include termination, demotion, failure to promote, reassignment with significantly different responsibilities, etc.  The Fourth Circuit Court of Appeals, in Ray v. International Paper Co., No. 17-2241 (4th Cir. 2018), added to...
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