Update on Retaliation Claims

Similarly, in last year's decision in CBOCs West, Inc. v. Humphries, No. 06-1431, 553 U.S. __ (U.S. Supreme Court May 27, 2008), the Supreme Court construed the broad anti-discrimination language of 42 U.S.C. ' 1981 to include a prohibition against retaliation for making a claim of race discrimination. Although Justice Thomas, in dissent, accused the majority of ignoring the plain language of the statute, Justice Breyer, writing for the majority, held that the 1991 Civil Rights Act amendments to ' 1981 ' and specifically the addition of a broad definition of “make and enforce contracts” to include post-contract-formation conduct ' led to the conclusion that the language of ' 1981 prohibits retaliation. See also Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896, 2009 U.S. LEXIS 3463 (2009) (Scalia, J.) (interpreting plain language of Federal Arbitration Act); Burlington Northern & Santa Fe Ry. v. United States, 129 S. Ct. 1870, 2009 U.S. LEXIS 3306 (2009) (Stevens, J.) (interpreting plain language of Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)); 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 2009 U.S. LEXIS 2497 (2009) (Thomas, J.) (interpreting language of ADEA and National Labor Relations Act as to whether collective bargaining agreement provision requiring arbitration of ADEA claims is enforceable).

What Is the Practical Significance of the Kasten Decision?

The only question before the Seventh Circuit in Kasten was whether the FLSA prohibited retaliation against employees who make purely oral complaints about alleged violations of federal wage and hour law. In light of the limited focus of the decision, its practical significance must be understood as similarly limited. Indeed, it would be a rare employment lawyer who would advise an employer to terminate an employee for making an oral wage claim. Even if the FLSA itself does not protect such conduct, it is possible that state statutory or common law would protect such a complaint and could impose liability on an employer that takes an adverse action because of the complaint. In the circumstances presented by the Kasten case, however, with an employer that wholly denied that the employee had ever even made the alleged oral complaints, the Kasten court's interpretation of ' 215(a)(3) will likely prove useful as the basis for a defense to a claim of retaliation.

Do Other Federal Anti-Discrimination Statutes Prohibit Retaliation Against Employees Who Make Purely Oral Complaints?

The Seventh Circuit's interpretation of the FLSA's anti-retaliation provision suggests the need to review whether other federal anti-discrimination laws may be subject to the same argument as that which Saint-Gobain successfully mounted in Kasten. As to Title VII and the ADEA, as the Seventh Circuit observed, their anti-retaliation provisions feature broad “opposition” clauses that do not require an analysis of whether the employee “filed any complaint,” as under ' 215(a)(3) of the FLSA, and do not appear to distinguish between oral and written complaints. Kasten, 2009 U.S. App. LEXIS 13913, at *12-15 (citing 42 U.S.C. ' 2000e-3(a) (prohibiting, inter alia, employer's discrimination against any employee “because he has opposed any practice made an unlawful employment practice by this title ' “), and 29 U.S.C. ' 623(d) (prohibiting, inter alia, employer's discrimination against any employee “because [he or she] has opposed any practice made unlawful by this section ' “)). See also 42 U.S.C. ' 12203(a) (Americans with Disabilities Act anti-retaliation provision provides, inter alia: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act ' “). Accordingly, the Kasten decision would appear to have no direct impact on retaliation cases under Title VII, ADEA, or the ADA.

Retaliation prohibitions in other federal anti-discrimination statutes, however, may be subject to the same limitations as the FLSA, as interpreted by the Kasten court. For example, the Family and Medical Leave Act, 29 U.S.C. ' 2615(b), prohibits retaliatory conduct in the following provision: “It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual: 1) has filed any charge ' ” (emphasis added). This language is even more restrictive than the “ filed any complaint” language of the FLSA, insofar as it requires not only a “fil[ing]” but also a “ charge,” as opposed to a mere “complaint.” Although FMLA retaliation claims most often assert that the employer has retaliated because the employee exercised his or her rights under FMLA ' not because he or she made a complaint about an alleged FMLA violation ' in those cases where the alleged retaliation derives from an employee complaint, the restrictive “filed any charge” language would come into play.

Moreover, the Equal Pay Act, which is codified as part of the FLSA at 29 U.S.C. ' 206, is also subject to the anti-retaliation provision in ' 215(a)(3), and, accordingly, retaliation claims under the Equal Pay Act must meet the “filed any complaint” requirement interpreted in Kasten to require a written complaint.

Conclusion

The current Supreme Court, and the lower federal courts, are likely to continue placing primary significance on the language of the statutory provisions on which litigants rely, thereby issuing statutory interpretations that may appear restrictive. As to the FLSA anti-retaliation provision, unless and until Congress acts to amend the statutory language in question, the Kasten decision will likely provide an avenue of defense for employers that are alleged to have retaliated against employees for making strictly oral complaints about alleged FLSA violations.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors, leads Day Pitney's Employment Litigation practice group. She has significant trial experience, representing clients across New England in state and federal court and in arbitration.

The first part of this article described Kasten v. Saint-Gobain Performance Plastics Corp., 2009 U.S. App. LEXIS 13913 (7th Cir. June 29, 2009). In that decision, the Seventh Circuit held that an employee's strictly oral complaints about allegedly improper wage practices did not implicate the FLSA's prohibition of retaliation against those who have “filed any complaint.” 29 U.S.C. ' 215(a)(3) (emphasis added). The conclusion discusses whether the decision is consistent with Supreme Court case law, the practical implications of the decision, and whether it applies to other federal anti-discrimination statutes.

Is the Kasten Decision Consistent with Supreme Court Case Law?

The Kasten decision, with its primary focus and reliance on the meaning of the “filed any complaint” language of ' 215(a)(3), is consistent with recent Supreme Court decisions that have interpreted federal statutes, including but not limited to anti-discrimination statutes, by emphasizing, first, the plain meaning of the provision at issue. For example, in Gross v. FBL Financial Services, Inc. , No. 08-441, __ U.S. __, (U.S. Supreme Court June 18, 2009), the high court rejected an argument that the ADEA permits use of a “mixed-motive” analysis, like that which was explicitly provided for in Title VII pursuant to the Civil Rights Act of 1991. The Gross court analyzed the textual differences between ADEA and Title VII claims with regard to burdens of persuasion, and specifically whether the allegedly illegal motive must be a “but-for” cause or may be simply one of several “motivating factors.” After reviewing the statutory text, the court held that the differences between the ADEA and Title VII statutory provisions prevent application of the “mixed-motive” analysis in ADEA cases.

Similarly, in last year's decision in CBOCs West, Inc. v. Humphries , No. 06-1431, 553 U.S. __ (U.S. Supreme Court May 27, 2008), the Supreme Court construed the broad anti-discrimination language of 42 U.S.C. ' 1981 to include a prohibition against retaliation for making a claim of race discrimination. Although Justice Thomas, in dissent, accused the majority of ignoring the plain language of the statute, Justice Breyer, writing for the majority, held that the 1991 Civil Rights Act amendments to ' 1981 ' and specifically the addition of a broad definition of “make and enforce contracts” to include post-contract-formation conduct ' led to the conclusion that the language of ' 1981 prohibits retaliation. See also Arthur Andersen LLP v. Carlisle , 129 S. Ct. 1896, 2009 U.S. LEXIS 3463 (2009) (Scalia, J.) (interpreting plain language of Federal Arbitration Act); Burlington Northern & Santa Fe Ry. v. United States , 129 S. Ct. 1870, 2009 U.S. LEXIS 3306 (2009) (Stevens, J.) (interpreting plain language of Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)); 14 Penn Plaza LLC v. Pyett , 129 S. Ct. 1456, 2009 U.S. LEXIS 2497 (2009) (Thomas, J.) (interpreting language of ADEA and National Labor Relations Act as to whether collective bargaining agreement provision requiring arbitration of ADEA claims is enforceable).

What Is the Practical Significance of the Kasten Decision?

The only question before the Seventh Circuit in Kasten was whether the FLSA prohibited retaliation against employees who make purely oral complaints about alleged violations of federal wage and hour law. In light of the limited focus of the decision, its practical significance must be understood as similarly limited. Indeed, it would be a rare employment lawyer who would advise an employer to terminate an employee for making an oral wage claim. Even if the FLSA itself does not protect such conduct, it is possible that state statutory or common law would protect such a complaint and could impose liability on an employer that takes an adverse action because of the complaint. In the circumstances presented by the Kasten case, however, with an employer that wholly denied that the employee had ever even made the alleged oral complaints, the Kasten court's interpretation of ' 215(a)(3) will likely prove useful as the basis for a defense to a claim of retaliation.

Do Other Federal Anti-Discrimination Statutes Prohibit Retaliation Against Employees Who Make Purely Oral Complaints?

The Seventh Circuit's interpretation of the FLSA's anti-retaliation provision suggests the need to review whether other federal anti-discrimination laws may be subject to the same argument as that which Saint-Gobain successfully mounted in Kasten. As to Title VII and the ADEA, as the Seventh Circuit observed, their anti-retaliation provisions feature broad “opposition” clauses that do not require an analysis of whether the employee “filed any complaint,” as under ' 215(a)(3) of the FLSA, and do not appear to distinguish between oral and written complaints. Kasten, 2009 U.S. App. LEXIS 13913, at *12-15 (citing 42 U.S.C. ' 2000e-3(a) (prohibiting, inter alia, employer's discrimination against any employee “because he has opposed any practice made an unlawful employment practice by this title ' “), and 29 U.S.C. ' 623(d) (prohibiting, inter alia, employer's discrimination against any employee “because [he or she] has opposed any practice made unlawful by this section ' “)). See also 42 U.S.C. ' 12203(a) (Americans with Disabilities Act anti-retaliation provision provides, inter alia: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act ' “). Accordingly, the Kasten decision would appear to have no direct impact on retaliation cases under Title VII, ADEA, or the ADA.

Retaliation prohibitions in other federal anti-discrimination statutes, however, may be subject to the same limitations as the FLSA, as interpreted by the Kasten court. For example, the Family and Medical Leave Act, 29 U.S.C. ' 2615(b), prohibits retaliatory conduct in the following provision: “It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual: 1) has filed any charge ' ” (emphasis added). This language is even more restrictive than the “ filed any complaint” language of the FLSA, insofar as it requires not only a “fil[ing]” but also a “ charge,” as opposed to a mere “complaint.” Although FMLA retaliation claims most often assert that the employer has retaliated because the employee exercised his or her rights under FMLA ' not because he or she made a complaint about an alleged FMLA violation ' in those cases where the alleged retaliation derives from an employee complaint, the restrictive “filed any charge” language would come into play.

Moreover, the Equal Pay Act, which is codified as part of the FLSA at 29 U.S.C. ' 206, is also subject to the anti-retaliation provision in ' 215(a)(3), and, accordingly, retaliation claims under the Equal Pay Act must meet the “filed any complaint” requirement interpreted in Kasten to require a written complaint.

Conclusion

The current Supreme Court, and the lower federal courts, are likely to continue placing primary significance on the language of the statutory provisions on which litigants rely, thereby issuing statutory interpretations that may appear restrictive. As to the FLSA anti-retaliation provision, unless and until Congress acts to amend the statutory language in question, the Kasten decision will likely provide an avenue of defense for employers that are alleged to have retaliated against employees for making strictly oral complaints about alleged FLSA violations.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors, leads Day Pitney's Employment Litigation practice group. She has significant trial experience, representing clients across New England in state and federal court and in arbitration.