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8 - Retaliation

Published online by Cambridge University Press:  01 October 2020

Ann C. McGinley
Affiliation:
University of Nevada, Las Vegas
Nicole Buonocore Porter
Affiliation:
University of Toledo, Ohio
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Summary

Chapter 8 rewrites Clark County School District v. Breeden, which held that the plaintiff’s retaliation claim under Title VII failed because no reasonable person could believe that a single incident of harassment violated Title VII. The rewritten opinion, exposing the bias many women suffer in the workplace as a result of micro-aggressions and using the perspective of a reasonable person in the plaintiff’s shoes, holds that complaining about even a single incident of harassment is sufficient to constitute a reasonable belief that the plaintiff is experiencing harassment. The rewritten opinion also broadens the causation element in retaliation cases in two ways. First, it refuses to set a bright-line rule for the passage of time between the protected activity and the adverse employment action. Second, it allows mixed-motive causation rather than but-for causation, which would make retaliation claims easier to win and would have eliminated the Nassar case, where the Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action.

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Feminist Judgments
Rewritten Employment Discrimination Opinions
, pp. 462 - 485
Publisher: Cambridge University Press
Print publication year: 2020

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