Court to Decide Questions of Mixed-Motives in Retaliation Claims Under Title VII

The Supreme Court has agreed to hear the case of Univ. Texas Southwestern Med. Center v. Nassar, which concerns the standard of causation in retaliation cases under Title VII. If an employer absolutely intended to retaliate against someone for taking a “protected action” (like complaining about discrimination), but would have fired that employee anyway for some unrelated reason, is the employer still liable for its illegal motives?  Continue reading

How the New Whistleblower Law Might Help the Administration Keep a Lid on Leaks

The Obama administration has been notoriously hostile towards leaks, and has been accused of doing “more than any modern executive to wage war on whistleblowers.” Why, then, would the administration go out of its way to not only sign the Whistleblower Protection Enhancement Act in December, but also to write a Presidential Policy Directive explicitly creating protections for whistleblowers in the intelligence community?

The answer likely lies in understanding the 2006 Supreme Court decision in Garcetti v. Ceballos. That decision carved out a peculiar exception to the First Amendment for certain public employees, essentially giving them an incentive to go public with any concerns about corruption or abuse, rather than complaining internally, up the chain of command. For an administration intent on preventing public leaks, this incentive structure is entirely backward.
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Firing HR Directors for Doing Their Job, Totally Legal

Pam Poovey, from "Archer"

If a human resources director conducts an investigation into sexual harassment, can the harasser fire her? Yup. Isn’t it generally illegal to retaliate against people who complain about sexual harassment? Yup. So, what gives? As is often the case in the law, a number of small logical conclusions combined to produce one giant illogical result.

First, the facts of yesterday’s Second Circuit decision, Townsend v. Bejamin Enterprises Inc. A woman worked for a company in which the President and Vice President were married. Mr. Vice President was a sexual harasser (as determined by the jury). Martha Townsend was his victim. She complained to her HR Director. HR Director initiated an investigation. Mrs. President was not happy with this — not surprising since her husband was the one being investigated for propositioning, touching, and sexually assaulting one of their employees. Mrs. President fired the HR Director to stop the investigation. Continue reading

Free Speech and Government Employees: Garcetti and Absurd Results

The intersection of First Amendment law and employment law can be fascinating — and can lead to extremely bizarre outcomes. In the last post, I discussed how the Court’s interpretation of the First Amendment led it to allow churches to, say, fire a minister for becoming pregnant, even where the religion itself has no inherent problem with pregnant ministers.

In this post, I want to discuss how the Court has interpreted the First Amendment to allow governments to retaliate against employees for exposing corruption — but only if the employee’s job is to expose corruption. Make sense? I didn’t think so.

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