“You Don’t Bring Me Flowers Anymore”: President Clinton, Paula Jones, and Why Courts Should Expand the Definition of “Adverse Employment Action” Under Title VII’s Anti-Retaliation Provision

Authors

Lawrence Rosenthal

Document Type

Article

Abstract

(Excerpt)

Anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) prohibit discrimination based on individuals’ protected characteristics. In addition to prohibiting this type of status-based discrimination, these statutes also prohibit employers from retaliating against employees who assert their rights under the statutes or who assist others in asserting their rights.

Over the past several years, retaliation charges filed with the Equal Employment Opportunity Commission (“EEOC”) have made up an increasingly high percentage of all charges filed with the agency. Specifically, in 2020, retaliation charges accounted for 55.8% of the charges filed with the EEOC. Ten years earlier, only 36.3% of the charges alleged retaliation, and ten years before that, only 27.1% of the charges alleged retaliation. The Supreme Court noted this increase in retaliation charges in University of Texas Southwestern Medical Center v. Nassar, where the Court observed the following:

[C]laims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race.

Although the Court in Nassar intimated this increase might be the result of frivolous claims, the numbers demonstrate that, even if there are some frivolous retaliation claims, retaliation—or at least the perception of it—is still an important issue for American workers.