Employment Retaliation Causation Defense

Retaliation claims are increasingly common in employment cases, supplementing traditional discrimination claims and making it appear harder to secure summary judgment. But causation is often the plaintiff's Achilles heel.

When an employee claims retaliation for reporting discrimination, the employer can rebut the claim by showing that its adverse employment action was due to other factors. Weimer et al., Employment Practices Liability, Second Edition, p. 213.

An employer can negate causation by demonstrating it would have reached the same decision even in the absence of the protected conduct. Gutwill v. City of Framingham, Mass., 995 F.3d 6, 12 (1st Cir. 2021).

For example, in Miller v. Vesta, 946 F.Supp. 697 (E.D. Wis. 1996), a woman sued her employer, alleging same-sex harassment and claiming that she was discharged for reporting the harassment. However, the employer demonstrated that the employee was actually fired for excessive absenteeism, not for filing the harassment claim, and the case was dismissed.

To lay the foundation for such a causation defense, it is important that the employer do regular written performance rules for all employees, documenting all needs for improvement based upon their written job descriptions. "This allows the employer to identify problem employees before they make complaints of adverse employment actions, thus obtaining protected status." Employment Practices Liability, 2nd Ed., p. 222.

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