When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.
Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence that her complaint caused the negative consequence, some judges refuse to call the employer’s conduct legal retaliation.
This growing body of retaliation harm jurisprudence is surprising. Under existing U.S. Supreme Court precedent, a worker suffers an adverse action if the negative consequence would dissuade a reasonable person from complaining about discrimination. Yet, lower courts routinely dismiss cases by ruling that consequences such as threatened termination or negative evaluations would not dissuade a reasonable person from filing a discrimination complaint.
In doing so, courts are making factual determinations about what reasonable people think. Using empirical evidence, this Article demonstrates that these factual determinations are incorrect. This Article then explores how structural and substantive features of retaliation law and judicial decision-making skew retaliation law in a narrow direction.