What’s Your Workplace Retaliation IQ?

by Constangy, Brooks, Smith & Prophete, LLP

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee.

1. What is retaliation?

A. Getting even with somebody because he did something you don’t like.Revenge.Baby

B. Denying somebody a reward (such as a pay raise) because he did something you don’t like.

C. Working in a retail establishment, such as a Walmart (“retailiation”).

D. Taking action against somebody (such as refusing to hire) because he did something you don’t like.

E. A, B, and D.                                                                                                “You’ll never work in this town again.”

F. None of the above.

ANSWER: E. The requirements for unlawful retaliation are more specific, but A, B, and D are examples of “generic” retaliation.

2. How many labor and employment laws prohibit retaliation?

A. All of them.

B. 1,377

C. Just Title VII, the Americans with Disabilities Act, and the Americans with Disabilities Act.

D. Pi (3.14159265359 . . .)

ANSWER: A, as far as I know, although the requirements for a valid claim will vary depending on which law is at issue.

3. Which of the following does a retaliation plaintiff NOT have to prove?

A. That “adverse employment action” was taken against her.

B. That she engaged in some sort of activity that was legally protected, like filing an EEOC charge.

C. That her employer was wicked and vengeful.

D. That there was a “causal connection” between the legally protected activity and the adverse employment action, or that the legally protected activity was a “contributing factor.”

ANSWER: C. If the employer takes adverse action because of the protected activity, or if the protected activity plays a role in the decision to take adverse action, then there is retaliation. It isn’t necessary for the plaintiff to prove that the employer had an evil state of mind, although that certainly wouldn’t hurt.  


We’ve all been there, haven’t we?

4. Joe filed a safety complaint, and then quit his job. It is not legally possible for his employer to retaliate against him now, since he is no longer employed.



ANSWER: B (False). The U.S. Supreme Court decided a long time ago that an employer can retaliate even after the employment relationship has ended — for example, by providing a negative employment reference.

5.  Brünhilda honestly and sincerely believes that her employer discriminates against women. In fact, her employer does not discriminate against women at all (you’ll have to trust me here). When Brünhilda complains to her fair employment practices agency about “discriminatory” practices at the company, her manager finds out and is so angry about the baseless charge that she demotes Brünhilda. The company then says that the charge should be dismissed because the allegation of sex discrimination had no basis and therefore Brünhilda did not engage in legally protected activity. Does the company win?



ANSWER: B (No). The company may win, but probably not on this ground. The fact that Brünhilda is wrong does not necessarily defeat her claim of retaliation. If she has a good-faith mistaken belief that her employer discriminates, depending on the applicable law, her complaint may still be legally protected.   

Twitter.NYC Office.Screen Shot 2015-03-12 at 6.47.38 PM


6. Dave complained to Human Resources about race discrimination in his company. Shortly after his complaint, his supervisor accused him of stealing, and Dave was suspended without pay for a month while the company investigated. Dave was cleared of wrongdoing, and the company brought him back to his job and paid him full back pay for the period that he was out. Nonetheless, Dave sues the company for retaliation under Title VII. The company says that there was no “adverse action” because Dave was paid after the investigation was over. You are the judge. Do you dismiss Dave’s case, or do you let it go to a jury?

A. I would dismiss the case because, in the end, Dave suffered no loss as a result of his protected activity.

B. I would dismiss the case because an internal complaint of discrimination is not “protected activity” – you have to file something with a government agency, like the EEOC, or a lawsuit.

C. I would let the case go to a jury because, even though Dave was paid and vindicated, the stress and financial hardship of the one-month unpaid suspension would tend to keep a “reasonable person” from making a complaint of discrimination in the future.

D. I would let the case go to a jury because all big corporations care about is money. Somebody needs to teach them a lesson. If not me, then who?

ANSWER: C. The U.S. Supreme Court settled this question several years ago. According to the Court, if the employer’s action would deter a reasonable employee from engaging in protected activity, then it is an “adverse employment action.” The Supreme Court case involved facts very similar to those in this quiz question, except that the employee’s complaint was about alleged sexual harassment.  

7. Taking action against an employee for engaging in “protected concerted activity” under the National Labor Relations Act is in effect another form of unlawful retaliation.



ANSWER: A (True). 

8. Chlorine, who is white, honestly and sincerely believes that her employer engages in reverse discrimination. She complains to her Human Resources representative, who is African-American. While making her complaint, Chlorine becomes enraged and calls the HR rep a particularly vile and odious racial epithet. Chlorine is fired for violation of the no-harassment policy. Chlorine then files an EEOC charge, claiming reverse race discrimination and retaliation. Who wins on the retaliation claim?

A. Chlorine, because reverse discrimination is a real thing.

B. Chlorine, because she was fired immediately after she made a legally protected complaint of discrimination.

C. The company, because there’s no such thing as “reverse discrimination.” The very idea is ludicrous.

D. The company, because Chlorine lost her legal “protection” when she used abusive and racist language with her HR representative.

E. Chlorine, because the First Amendment protects her right to free speech, even if that speech is offensive.

ANSWER: D. Although Chlorine may have had a valid complaint of reverse discrimination (which, by the way, is indeed against the law), she lost her legal protection when she called her HR representative a racial epithet. And even if her complaint did not lose its legal protection, Chlorine was not fired for making the complaint but for using the epithet, which is a different issue entirely. Assuming her employer is in the private sector, there is no First Amendment protection for her remark. The First Amendment protects her only from “state action” – for example, Chlorine could not be charged with a crime for what she said.

Revenge.Success Is Best Revenge


6-8 CORRECT: You are a retaliation authority!

4-5 CORRECT: You “meet expectations.”

2-3 CORRECT: Um . . . did you come across this blog by accident?

0-1 CORRECT: The federal marshal is downstairs, waiting to hand you a summons and complaint. (Just kidding!)


If you’re in the D.C. area, including Maryland and Virginia, you will want to read David Phippen‘s latest about the new District of Columbia “wage theft” law.

Image credits: All except Twitter screen shot from flickr, Creative Commons license: Vindictive baby by Petras Gagilas; vindictive billboard by  Harsh Agrawal and www.chromo.com; “Success Is the Best Revenge” by Charlie Day.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.