Let’s start with the statistics.  Last year, there were 99,412 EEOC charges filed; 37,836 of them – more than one out of every three – asserted retaliation.  Put differently, more charges of retaliation were filed than any other protected category.  It is every plaintiff’s lawyer’s favorite play.  Why?  Let’s turn to a case study.

One of your managers, an “incredible and valuable employee” has been accused of mistreating a subordinate.  You do everything right, conduct an investigation, and conclude that there was no sexual harassment.  But, the complaining employee keeps coming back, protesting that the supervisor isn’t being fair.  You decide enough is enough, and determine that the employee just has a problem with the supervisor, and it’s best to part ways.  Not surprisingly, the employee sues, but the court agrees that there was not a hostile work environment. 

So time to pop open the champagne, right?  Not so fast: there is also a retaliation claim.  Here, you have clear complaints, followed by a termination, and collateral evidence that those complaints were a factor in the termination.  That sounds like retaliation.  That was exactly how the appellate court saw it in Westendorf  v. West Coast Contractors of Nevada, Inc., 712 F.3d 417 (9th Cir. 2013). 

The appellate court found that a litany of sexual comments — even though many were raunchy — were not severe and pervasive enough to constitute a hostile work environment.  Further, mean-spirited comments by the supervisor that were nonsexual also could not form the basis for a hostile work environment claim.  Thus, the appellate court upheld summary judgment to the employer on that claim. 

But, the appellate court majority (despite a dissent from one judge) reversed summary judgment on the retaliation claim sending it back for a full trial.  Even though Westendorf’s final round of complaints had nothing to do with sexist remarks, management’s response hit the same iceberg as the Titanic: “[we are] tired of listening to all this” and “[you] obviously had a problem getting along with [the supervisor] and that it would be best if [you] got [your] personal items and left.”

This is not just one employer having an off day or one court being difficult.  In Summa v. Hofstra University, 708 F.3d 115 (2nd Cir. 2013), a female student manager of the football team complained of sexism; the university took immediate action, including kicking the primary offender off the team, and ordering sexual harassment training for the coaching and athletics department staff; but then declined to let the student manager continue in her job.  There too, the appellate court agreed that the employer could not be held liable for sexual harassment but found the lame excuses for failing to retain this woman to be retaliatory. 

Further, the Supreme Court’s recent decision requiring proof according to traditional  principles of but-for causation will not obviate problems like those in Summa or Westendorf.  While the decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___, slip op. no. 12-484 (June 24, 2013) is welcome news, it would not change the outcome in either Summa or Westendorf.

So what can we learn from this pair of recent cases?  The protected group that anyone can join and at any time —  tattle-tales, whiners, and the boy who cried wolf — is indeed the most dangerous because our frustrations with that group are longstanding (the boy who cried wolf comes from Aesop).  Accordingly, protecting your organization from retaliation claims is difficult precisely because it is often emotionally counterintuitive.