Retaliation: What is an Adverse Action?

It has become an increasingly common fact pattern: An employer discriminates against an employee, for example, because of her gender. She files a claim of discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). In a matter of days, the employer finds out about her charges and decides to make her work life miserable. This might create a straightforward claim for unlawful retaliation, that is if the employer's actions made her life 'miserable enough.' The question of what is 'miserable enough' has divided the courts, and thus there may not be a clear answer to questions on adverse employment actions for employers or employees.

As a threshold matter, no employee can sustain a claim for retaliatory discrimination without proving that the employer took an adverse employment action against him or her, but how adverse must an adverse action be? Certainly, some adverse actions will be 'no brainers,' such as firing. But what if, in response to the employee's charge before the EEOC, the employer docks the employee's salary? Or reassigns the employee to a less prestigious job? Or moves him or her from the fancy corner office to a room in the basement facing the boiler?

As common as retaliation claims may be, it has taken over 40 years since the passage of the Civil Rights Act of 1964 for courts to answer the question of what exactly counts as retaliation. At last, the Supreme Court will be weighing in on this question in the case of Burlington Northern and Sante Fe Railway Co. v. White, which was argued on April 17, 2006, and in which a decision may be issued by the end of June.

Unfortunately for employees, one court's 'adverse employment action' is another court's 'frivolous lawsuit'; just because an action may feel like retaliation, doesn't necessarily make it so under the law. Resolving these tensions will require the Supreme Court to balance employees' rights to be free from retaliation against employers' desire to conduct business free from expensive litigation. The Supreme Court's decision ' binding on the lower courts which currently disagree on this issue ' will ultimately alter the liability landscape for some, but will be a good opportunity for all firms to reevaluate their practices and prevent retaliatory acts before they occur.

Background

Title VII of the Civil Rights Act of 1964 and similar federal anti-discrimination statutes, such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), explicitly protect employees who have asserted their rights under these laws from retaliation by their employers. Put simply, an employee who either participates in a Title VII proceeding or opposes his or her boss's discriminatory policies has engaged in legally protected activity.

The courts have held that an actionable retaliation claim must have three core elements: 1) The employee engaged in legally protected activity; 2) the employer retaliated by taking an adverse employment action against the employee; and 3) there is a causal connection between the protected activity and the adverse employment action. Of course, the employer will have an opportunity to dispute any of these elements, and the employee has the burden of convincing the fact finder of each of them.

What this article addresses, and what the Supreme Court will resolve in Burlington Northern, is one kind of employer response: It did nothing illegal because its actions were not 'adverse enough' to be prohibited under the law.

The Standards

Currently, the federal appellate court decisions are split among three definitions of retaliation: An employer-friendly standard (limited to 'ultimate employment decisions'); an employee-friendly standard (actions that are 'reasonably likely to deter' employees from pursuing discrimination claims); and a middle ground definition that strikes a balance between the two (actions that are 'materially adverse' to employees).

Only two appellate courts subscribe to the strict 'ultimate employment decisions' standard. Essentially, what it comes down to for these courts is money: Did the adverse employment action come with a discernable 'price tag?' These courts have held that retaliation must involve employment decisions such as hiring, discharging, promoting, demoting, and other determinations resulting in lost pay or benefits. Mattern v. Eastman Kodak, Co., 104 F.3d 702 (5th Cir. 1997); Ledergerber v. Strangler, 122 F.3d 1142 (8th Cir. 1997).

Most courts, including the Sixth Circuit, the court whose decision is on appeal in Burlington Northern, have rejected that approach. The Burlington Northern decision held that although courts should 'deter discrimination lawsuits based on trivial employment actions, such as those that cause a 'mere inconvenience' or a 'bruised ego,” no filter should be overly broad. 364 F.3d at 802. The Sixth Circuit opted for the middle ground and defined adverse employment actions as those that create a 'materially adverse change in the terms of [the plaintiff's] employment.' Burlington Northern, 364 F.3d at 797. The Second Circuit, which also uses the 'materially adverse' definition, has held that such actions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ' unique to a particular situation.' Fairbrother v. Morrison, 412 F.3d 39 (2d Cir. 2005) (citations omitted). Though more expansive than the 'ultimate employment decision' definition, 'materially adverse' actions still could exclude some transfers and reassignments, employee discipline, negative job references, or other non-monetary benefits. Weeks v. N.Y. State Division of Parole, 273 F.3d 76 (2d Cir. 2001).

Other courts, as well as the EEOC, follow the broad 'reasonably likely to deter' standard, which could encompass virtually any form of retaliation, regardless of its 'price tag.' The EEOC's Compliance Manual describes the standard as follows: 'Adverse employment action [is] any treatment that is based on a retaliatory motive and is
reasonably likely to deter a charging party from engaging in protected activity.' Compl. Manual '8. Its flexibility allows courts to apply the standard to new, as yet unimagined forms of retaliation. See, E.E.O.C. v . Die Fliedermaus, 77 F. Supp. 2d 460 (S.D.N.Y. 1999) (plaintiffs pled an adverse action where employer retaliated by distributing fliers to the public about the complainants, calling them suspected prostitutes, child molesters, and drugs users).

The obvious objection is that the 'reasonably likely to deter' standard has no bounds. As Justice Scalia warned during oral argument in Burlington Northern, if the boss gives an employee a dirty look or fails to say 'good morning,' an employer theoretically could be liable under too broad a definition of retaliation. Courts and the EEOC, however, know the risks posed by trivial claims, and employees must still prove retaliatory intent to succeed. It is also not easy for an individual to bring a lawsuit, particularly against a current employer.

Although these standards may seem like technicalities, they have significantly different consequences. One recent case, involving a law firm associate illustrates the differences.

The Standards Applied

The Fourth Circuit in an unpublished decision, Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 123 Fed. Appx. 558 (4th Cir. 2005), upheld a jury award for the plaintiff, Dawn Gallina, an associate in the firm's Reston, VA, office. She alleged discriminatory comments by a managing partner and complained to the firm's Boston headquarters. When the partners in Reston learned about Gallina's complaint, they allegedly began a series of retaliatory acts to punish her for 'embarrassing' the Reston office at headquarters. The purported retaliatory acts ranged from minor to severe: 1) one partner made hostile comments, questioning her commitment to the firm and telling her 'she needed to decide whether she wanted to be 'a successful mommy or a successful lawyer.”; 2) that same partner tried to dissuade her from complaining by telling her 'any dirty laundry that there may be in Reston needs to be handled in Reston. You don't need to go to Boston.'; 3) the managing partner withheld her annual pay raise 'pending the results of her performance evaluations'; 4) the Reston partners ultimately gave her all negative evaluations; and finally 5) the firm fired her.

It seems obvious that no court would question that Gallina's dismissal was an adverse action. The withheld pay increase likewise would meet all three definitions of retaliation. The firm's other acts, however, were less severe. Neither disparaging comments nor dissuading Gallina's complaint, nor the negative evaluations are 'ultimate employment decisions' because, as discussed earlier, they came unaccompanied by a 'price tag.' The negative evaluations might count as 'materially adverse' or 'reasonably likely to deter' in some courts because poor performance reviews could have a tangible and lasting effect on an attorney's prospects for promotion, case assignments, or even employment at a new firm. That said, courts have emphasized that negative or false evaluations alone are not actionable. See generally, Bernstein v. Oak Park-River Forest High, No. 98-3910, 1999 WL 594920 (7th Cir. 1999).

The remaining two alleged acts consisted of hostile comments from a partner. Typically, comments alone are not 'adverse enough' because they result only in 'hurt feelings' or 'bruised egos.' Even courts applying the 'reasonably likely to deter' standard might not find the partner's comments actionable without more. Nonetheless, Gallina could assert that such comments from a partner have a chilling effect on employees' ability to defend their rights and are 'reasonably likely to deter' employees from pursuing discrimination claims. (See, Howard v. Bd. of Educ. Of Sycamore Comm. Unit Sch. Dist. No. 427, 876 F. Supp. 959 (N.D. Ill. 1995) (finding plaintiff suffered actionable retaliation where employer told her not to complain about discrimination and subjected her to further sexual harassment); but see, Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389 (5th Cir. 2000) (treating only the charging party's denied promotion and transfer as 'ultimate employment decisions,' but allowing the jury to consider hostile words as evidence of retaliatory motive)).

Avoiding Liability

Lawsuits are unpredictable creatures, with each side looking to use ambiguities in the facts and the law. No firm can completely shield itself from liability. The best defense is common sense: Play honestly and fairly with your employees. Regardless of which standard the Supreme Court settles upon, management may significantly reduce its chances of a surprise lawsuit if it follows certain principles:

• Most Obviously, Don't Retaliate. An employee's claim against the firm may seem like the ultimate form of insubordination that calls for management to take some action. It may be tempting to punish, suspend, reassign, or even fire the employee. In a word ' think twice. By taking any action against an employee following the assertion of a claim, you may open yourself up to additional liability ' even if your action was not intended as retaliation. If an adverse employment action is merited, keep good records of why and make sure that sanctions and discipline are applied evenly, not disproportionately to a complaining employee.
• Know the Law. Know the federal and state statutes that protect employees, and be aware that employees pursuing discrimination charges have the right to be free from unlawful retaliation. As a corollary, make sure that all managers are aware of these laws.
• Consult an Employment Lawyer. Beyond consulting counsel about the employee's discrimination claims, be sure to discuss permissible responses to the employee in the workplace. Especially if you are unclear whether an action (such as reassignment) could be construed as retaliation, seek advice before making a move.
• Don't Be Fooled By Employment At-Will. Although at-will employees may be fired at any time for almost any reason or no reason at all, the key word here is 'almost.' A retaliatory discharge, if proven, is an illegal discharge.
• Document Employee Performance Honestly and Regularly. By keeping periodic performance records of all employees, the firm can better protect itself from charges of retaliation. Without proper records, a firm that blames an employee's discharge on his or her sloppy performance might be found guilty of pretext, eg, 'sloppy performance' is merely an excuse for retaliatory motive. On the other hand, proper records may allow the employer to demonstrate that the employee in fact performed poorly.
• Solicit Employee's Input Before Transfers. Of course, management need not 'cave in' to an employee's demands simply because he or she has made a complaint. But it may be worthwhile to include the employee in any discussions about his or her work situation while there is an internal or EEOC investigation of any discrimination charges. In other words, make a good faith effort to solicit the employee's input before making a transfer, reassignment or other such change. Of course, situations may arise, such as open hostility between an employee and supervisor, that call for immediate unilateral action. But, where possible, employee input may help quell any doubts about management's reasons for a reassignment or transfer.
  Even if the Supreme Court adopts the management-friendly ultimate employment decision standard, that ruling should not be taken as a green light to engage in lesser forms of retaliation, such as reassignments, evaluations, or negative job references. The reasons are manifold:
• State Law Liability. Depending on where you conduct business, state law may be more friendly to employees than federal law. So even if the Supreme Court restricts retaliation claims under Title VII, a firm might still find itself open to state or local law liability for retaliatory conduct. See, eg, New York City Admin. Code '8-107(7) (expressly adopting the 'reasonably likely to deter' standard).
• Other Claims May Remain. Actions such as negative job references or some forms of harassment may not constitute retaliation under Title VII, but may still subject an employer to liability for defamation or other state law claims.
• Bad Policy. Even assuming the em-ployer's retaliatory conduct is not actionable, disfavoring an employee who has complained of bias is not wise. Not only does it interfere with a smooth working environment and productivity; such a decision would set a negative example for other managers and supervisors, and could generate other more serious, and therefore actionable, retaliation or harassment.

Conclusion

With the number of retaliation claims steadily rising over the last 15 years, the Supreme Court's input comes not a moment too soon. Between fiscal years 1992 and 2005, the number of retaliation claims filed with the EEOC has more than doubled; from 11,096 to 22,278, leaving one article in the New York Law Journal to call retaliation claims the 'growth industry of discrimination law.' David M. Wirtz and Anna Pintsov, Retaliation Claims: The Growth Industry of Discrimination Law, N.Y. Law Journal, Sept. 17, 2002. The Court may turn retaliation from a bull market to a bear market, but either way, Burlington Northern won't be the end of the story.

It has become an increasingly common fact pattern: An employer discriminates against an employee, for example, because of her gender. She files a claim of discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). In a matter of days, the employer finds out about her charges and decides to make her work life miserable. This might create a straightforward claim for unlawful retaliation, that is if the employer's actions made her life 'miserable enough.' The question of what is 'miserable enough' has divided the courts, and thus there may not be a clear answer to questions on adverse employment actions for employers or employees.

As a threshold matter, no employee can sustain a claim for retaliatory discrimination without proving that the employer took an adverse employment action against him or her, but how adverse must an adverse action be? Certainly, some adverse actions will be 'no brainers,' such as firing. But what if, in response to the employee's charge before the EEOC, the employer docks the employee's salary? Or reassigns the employee to a less prestigious job? Or moves him or her from the fancy corner office to a room in the basement facing the boiler?

As common as retaliation claims may be, it has taken over 40 years since the passage of the Civil Rights Act of 1964 for courts to answer the question of what exactly counts as retaliation. At last, the Supreme Court will be weighing in on this question in the case of Burlington Northern and Sante Fe Railway Co. v. White, which was argued on April 17, 2006, and in which a decision may be issued by the end of June.

Unfortunately for employees, one court's 'adverse employment action' is another court's 'frivolous lawsuit'; just because an action may feel like retaliation, doesn't necessarily make it so under the law. Resolving these tensions will require the Supreme Court to balance employees' rights to be free from retaliation against employers' desire to conduct business free from expensive litigation. The Supreme Court's decision ' binding on the lower courts which currently disagree on this issue ' will ultimately alter the liability landscape for some, but will be a good opportunity for all firms to reevaluate their practices and prevent retaliatory acts before they occur.

Background

Title VII of the Civil Rights Act of 1964 and similar federal anti-discrimination statutes, such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), explicitly protect employees who have asserted their rights under these laws from retaliation by their employers. Put simply, an employee who either participates in a Title VII proceeding or opposes his or her boss's discriminatory policies has engaged in legally protected activity.

The courts have held that an actionable retaliation claim must have three core elements: 1) The employee engaged in legally protected activity; 2) the employer retaliated by taking an adverse employment action against the employee; and 3) there is a causal connection between the protected activity and the adverse employment action. Of course, the employer will have an opportunity to dispute any of these elements, and the employee has the burden of convincing the fact finder of each of them.

What this article addresses, and what the Supreme Court will resolve in Burlington Northern, is one kind of employer response: It did nothing illegal because its actions were not 'adverse enough' to be prohibited under the law.

The Standards

Currently, the federal appellate court decisions are split among three definitions of retaliation: An employer-friendly standard (limited to 'ultimate employment decisions'); an employee-friendly standard (actions that are 'reasonably likely to deter' employees from pursuing discrimination claims); and a middle ground definition that strikes a balance between the two (actions that are 'materially adverse' to employees).

Only two appellate courts subscribe to the strict 'ultimate employment decisions' standard. Essentially, what it comes down to for these courts is money: Did the adverse employment action come with a discernable 'price tag?' These courts have held that retaliation must involve employment decisions such as hiring, discharging, promoting, demoting, and other determinations resulting in lost pay or benefits. Mattern v. Eastman Kodak, Co. , 104 F.3d 702 (5th Cir. 1997); Ledergerber v. Strangler , 122 F.3d 1142 (8th Cir. 1997).

Most courts, including the Sixth Circuit, the court whose decision is on appeal in Burlington Northern, have rejected that approach. The Burlington Northern decision held that although courts should 'deter discrimination lawsuits based on trivial employment actions, such as those that cause a 'mere inconvenience' or a 'bruised ego,” no filter should be overly broad. 364 F.3d at 802. The Sixth Circuit opted for the middle ground and defined adverse employment actions as those that create a 'materially adverse change in the terms of [the plaintiff's] employment.' Burlington Northern, 364 F.3d at 797. The Second Circuit, which also uses the 'materially adverse' definition, has held that such actions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ' unique to a particular situation.' Fairbrother v. Morrison , 412 F.3d 39 (2d Cir. 2005) (citations omitted). Though more expansive than the 'ultimate employment decision' definition, 'materially adverse' actions still could exclude some transfers and reassignments, employee discipline, negative job references, or other non-monetary benefits. Weeks v. N.Y. State Division of Parole , 273 F.3d 76 (2d Cir. 2001).

Other courts, as well as the EEOC, follow the broad 'reasonably likely to deter' standard, which could encompass virtually any form of retaliation, regardless of its 'price tag.' The EEOC's Compliance Manual describes the standard as follows: 'Adverse employment action [is] any treatment that is based on a retaliatory motive and is
reasonably likely to deter a charging party from engaging in protected activity.' Compl. Manual '8. Its flexibility allows courts to apply the standard to new, as yet unimagined forms of retaliation. See, E.E.O.C. v . Die Fliedermaus, 77 F. Supp. 2d 460 (S.D.N.Y. 1999) (plaintiffs pled an adverse action where employer retaliated by distributing fliers to the public about the complainants, calling them suspected prostitutes, child molesters, and drugs users).

The obvious objection is that the 'reasonably likely to deter' standard has no bounds. As Justice Scalia warned during oral argument in Burlington Northern, if the boss gives an employee a dirty look or fails to say 'good morning,' an employer theoretically could be liable under too broad a definition of retaliation. Courts and the EEOC, however, know the risks posed by trivial claims, and employees must still prove retaliatory intent to succeed. It is also not easy for an individual to bring a lawsuit, particularly against a current employer.

Although these standards may seem like technicalities, they have significantly different consequences. One recent case, involving a law firm associate illustrates the differences.

The Standards Applied

The Fourth Circuit in an unpublished decision, Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. , 123 Fed. Appx. 558 (4th Cir. 2005), upheld a jury award for the plaintiff, Dawn Gallina, an associate in the firm's Reston, VA, office. She alleged discriminatory comments by a managing partner and complained to the firm's Boston headquarters. When the partners in Reston learned about Gallina's complaint, they allegedly began a series of retaliatory acts to punish her for 'embarrassing' the Reston office at headquarters. The purported retaliatory acts ranged from minor to severe: 1) one partner made hostile comments, questioning her commitment to the firm and telling her 'she needed to decide whether she wanted to be 'a successful mommy or a successful lawyer.”; 2) that same partner tried to dissuade her from complaining by telling her 'any dirty laundry that there may be in Reston needs to be handled in Reston. You don't need to go to Boston.'; 3) the managing partner withheld her annual pay raise 'pending the results of her performance evaluations'; 4) the Reston partners ultimately gave her all negative evaluations; and finally 5) the firm fired her.

It seems obvious that no court would question that Gallina's dismissal was an adverse action. The withheld pay increase likewise would meet all three definitions of retaliation. The firm's other acts, however, were less severe. Neither disparaging comments nor dissuading Gallina's complaint, nor the negative evaluations are 'ultimate employment decisions' because, as discussed earlier, they came unaccompanied by a 'price tag.' The negative evaluations might count as 'materially adverse' or 'reasonably likely to deter' in some courts because poor performance reviews could have a tangible and lasting effect on an attorney's prospects for promotion, case assignments, or even employment at a new firm. That said, courts have emphasized that negative or false evaluations alone are not actionable. See generally, Bernstein v. Oak Park-River Forest High, No. 98-3910, 1999 WL 594920 (7th Cir. 1999).

The remaining two alleged acts consisted of hostile comments from a partner. Typically, comments alone are not 'adverse enough' because they result only in 'hurt feelings' or 'bruised egos.' Even courts applying the 'reasonably likely to deter' standard might not find the partner's comments actionable without more. Nonetheless, Gallina could assert that such comments from a partner have a chilling effect on employees' ability to defend their rights and are 'reasonably likely to deter' employees from pursuing discrimination claims. ( See , Howard v. Bd. of Educ. Of Sycamore Comm. Unit Sch. Dist. No. 427 , 876 F. Supp. 959 (N.D. Ill. 1995) (finding plaintiff suffered actionable retaliation where employer told her not to complain about discrimination and subjected her to further sexual harassment); but see , Thomas v. Texas Dep't of Criminal Justice , 220 F.3d 389 (5th Cir. 2000) (treating only the charging party's denied promotion and transfer as 'ultimate employment decisions,' but allowing the jury to consider hostile words as evidence of retaliatory motive)).

Avoiding Liability

Lawsuits are unpredictable creatures, with each side looking to use ambiguities in the facts and the law. No firm can completely shield itself from liability. The best defense is common sense: Play honestly and fairly with your employees. Regardless of which standard the Supreme Court settles upon, management may significantly reduce its chances of a surprise lawsuit if it follows certain principles:

• Most Obviously, Don't Retaliate. An employee's claim against the firm may seem like the ultimate form of insubordination that calls for management to take some action. It may be tempting to punish, suspend, reassign, or even fire the employee. In a word ' think twice. By taking any action against an employee following the assertion of a claim, you may open yourself up to additional liability ' even if your action was not intended as retaliation. If an adverse employment action is merited, keep good records of why and make sure that sanctions and discipline are applied evenly, not disproportionately to a complaining employee.
• Know the Law. Know the federal and state statutes that protect employees, and be aware that employees pursuing discrimination charges have the right to be free from unlawful retaliation. As a corollary, make sure that all managers are aware of these laws.
• Consult an Employment Lawyer. Beyond consulting counsel about the employee's discrimination claims, be sure to discuss permissible responses to the employee in the workplace. Especially if you are unclear whether an action (such as reassignment) could be construed as retaliation, seek advice before making a move.
• Don't Be Fooled By Employment At-Will. Although at-will employees may be fired at any time for almost any reason or no reason at all, the key word here is 'almost.' A retaliatory discharge, if proven, is an illegal discharge.
• Document Employee Performance Honestly and Regularly. By keeping periodic performance records of all employees, the firm can better protect itself from charges of retaliation. Without proper records, a firm that blames an employee's discharge on his or her sloppy performance might be found guilty of pretext, eg, 'sloppy performance' is merely an excuse for retaliatory motive. On the other hand, proper records may allow the employer to demonstrate that the employee in fact performed poorly.
• Solicit Employee's Input Before Transfers. Of course, management need not 'cave in' to an employee's demands simply because he or she has made a complaint. But it may be worthwhile to include the employee in any discussions about his or her work situation while there is an internal or EEOC investigation of any discrimination charges. In other words, make a good faith effort to solicit the employee's input before making a transfer, reassignment or other such change. Of course, situations may arise, such as open hostility between an employee and supervisor, that call for immediate unilateral action. But, where possible, employee input may help quell any doubts about management's reasons for a reassignment or transfer.
  Even if the Supreme Court adopts the management-friendly ultimate employment decision standard, that ruling should not be taken as a green light to engage in lesser forms of retaliation, such as reassignments, evaluations, or negative job references. The reasons are manifold:
• State Law Liability. Depending on where you conduct business, state law may be more friendly to employees than federal law. So even if the Supreme Court restricts retaliation claims under Title VII, a firm might still find itself open to state or local law liability for retaliatory conduct. See, eg, New York City Admin. Code '8-107(7) (expressly adopting the 'reasonably likely to deter' standard).
• Other Claims May Remain. Actions such as negative job references or some forms of harassment may not constitute retaliation under Title VII, but may still subject an employer to liability for defamation or other state law claims.
• Bad Policy. Even assuming the em-ployer's retaliatory conduct is not actionable, disfavoring an employee who has complained of bias is not wise. Not only does it interfere with a smooth working environment and productivity; such a decision would set a negative example for other managers and supervisors, and could generate other more serious, and therefore actionable, retaliation or harassment.

Conclusion

With the number of retaliation claims steadily rising over the last 15 years, the Supreme Court's input comes not a moment too soon. Between fiscal years 1992 and 2005, the number of retaliation claims filed with the EEOC has more than doubled; from 11,096 to 22,278, leaving one article in the New York Law Journal to call retaliation claims the 'growth industry of discrimination law.' David M. Wirtz and Anna Pintsov, Retaliation Claims: The Growth Industry of Discrimination Law, N.Y. Law Journal, Sept. 17, 2002. The Court may turn retaliation from a bull market to a bear market, but either way, Burlington Northern won't be the end of the story.