Fla. L. Rev. Forum

Alex B. Long
Retaliation and the Unreasonable Judge
Response to Sandra Sperino, Retaliation and the Reasonable Person

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.