The majority thus ignores Robinson and resorts to its unsanctioned "original intent" methodology, presumably because it cannot adequately square the result it reaches with the Act’s substantive context, that is, the literal words of § 216(b) affording victims of retaliation the alternative reme- dies of "reinstatement" and "employment." Obviously, only former employees can be reinstated, leaving the remedy of employment to those who cannot be reinstated, i.e., those, like Dellinger, who have yet to be employed.

Does an employer have the right to turn on heat lamps directed at workers picketing in 99 degree weather? I think we are going to find out.

(1) Does section 704(a) forbid an employer 

from retaliating for such activity by inflicting 

reprisals on a third party, such as a spouse, 

family member or fiancé, closely associated 

with the employee who engaged in such 

protected activity? 

(2) If so, may that prohibition be enforced 

in a civil action brought by the third party 

victim? 

A national retail employer Aaron Rents, Inc. recently lost a suit (complaint here) involving allegations of assault, battery, negligent hiring, negligent retention, negligent supervision, negligent investigation of a sexual harassment claim, negligent repair, intentional infliction of emotional distress, retaliation, sexual harassment. The allegations of the complaint provide an excellent checklist of what to consider and avoid in responding to employee harassment complaints. The allegations are enough to outrage a lot of potential jurors. Seems the 20 year old female plaintiff was subjected to months of unwanted attention from her store manager and gifts that were accompanied by inappropriate requests, one allegation involves the store manager. One alleged incident involved the manager sneaking up behind her as she was sitting on the floor and banging his penis on her head. Another allegation involved the manager grabbing her, throwing her to the floor, pulling up her shirt to expose her chest and masturbating to ejaculation on her chest. When plaintiff complained her complaints were not adequately investigated and she was retaliated against according to the allegations of the suit. Various legal caps may reduce the jury award to $43 million.

A divided Fifth Circuit panel has ruled that a mixed motive instruction in a Title VII retaliation case is appropriate, does not require direct evidence to support it, and is not inconsistent with the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 23 43 (2009). The majority opinion (Reavely and Wiener) is a must read for practitioners in the Fifth Circuit. It presents the past and present law of the Circuit in a straightforward, understandable opinion. The dissent (Jolly) notes the decision conflicts with the Seventh Circuit's ruling in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).

In a divided opinion, (Breyer) the Supreme Court has decided that a written complaint is not a necessary prerequisite to a retaliation claim under the Fair Labor Standards Act. The Court refused to decide whether the complaint must be filed with  a court or the government, (as dissenters Scalia and Thomas urged) because the Employer did not raise the issue in its Petition for Certiorari. Nevertheless, much of the reasoning in the majority opinion would support the position that an internal complaint would also be protected by the anti-retaliation provisions.

The 11th Circuit just decided an interesting FLSA retaliation case. The plaintiffs filed suit  concerning overtime violations. Subsequently, after the initial suit was filed, the plaintiffs filed a second suit alleging retaliation occurring after the filing of the original claims. Because there was no amendment or subsequent pleading asserting the second claim in the first suit, disposition of the first suit did not bar the second suit as res judicata.

The trial court granted summary judgment to the employer holding Title VII “does not permit third party retaliation claims.” An en banc Sixth Circuit affirmed.

"[W]e adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules [the employer's argument] cannot justify departing from statutory text."

"[A] plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990). We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in  consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399–400 (1987). We hold that the term “ag  grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal quotation marks omitted), while excluding plain  tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII."