In one sense, Sperino’s article is somewhat reassuring. But the results were also somewhat horrifying in that they laid bare the reality that too many courts seem to take a view of these matters that I would argue is completely at odds with common sense and the reasons why the law prohibits retaliation in the first place. I think the article does a remarkable job of identifying a serious problem with retaliation law as it has developed since the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway v. White. What’s more, for reasons I will explain in slightly more detail later, I think Professor Sperino’s proposed solution—that courts define actionable retaliation in terms of an action that is more than de minimis in nature—is not only workable, but one that I can actually envision a court adopting. Ultimately, the article raised two issues for me: (1) why are so many courts so apparently misguided when it comes to determining what might dissuade a reasonable employee from complaining about discrimination and (2) how might a court actually go about adopting Professor Sperino’s proposed solution? Read more.
September 2016, Vol. 68, No. 5
Leslie C. Levin, Lawyers Going Bare and Clients Going Blind
Aya Gruber, Amy J. Cohen, & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts
Caprice Roberts, Supreme Disgorgement
Anthony Jose Sirven, Undue Process: A Father's Proprietary Interest in an Embryo and Its Clash with Casey
Maris Snell, Section 875C: Not for All Intents and Purposes