Wednesday, April 24, 2013

Long & Sperino on Diminishing Retaliation Liability

LongAlex Sperino

Alex Long (Tennessee) and Sandra Sperino (Cincinnati) has just had their essay, "Diminishing Retaliation Liability" published in the NYU Law Review Online.  The essay's introduction:

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

An interesting topic from two folks who know their retaliation law, so check it out.


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I would propose that the way to go here is simply to get rid of "class-based" harassment law altogether and replace it with a general workplace harassment law. This might be most easily conceptualized as an expansion of OSHA principles, to reflect the modern understanding that physical and verbal harassment is an occupational-health issue (and ultimately a safety issue too, because employees who suffer harassment are surely more likely to snap and commit workplace violence).

The bottom line is that while there are many causes of workplace harassment-- including retaliation and protected-class status, but also including things like political viewpoint, physical weakness, or just plain old-fashioned bullying-- the effects are similar regardless. It's reprehensible to bully people, and it's equally reprehensible to turn a blind eye to bullying of people under your command.

All that needs to be done, I think, is to pass a general statute which a. bans harassment by managers, b. imposes liability for harassment by nonmanagers where the company knowingly fails to stop it, and c. excuses liability where the company maintains an effective anti-harassment policy. The definition of harassment needn't change at all.

Posted by: Anon | Apr 24, 2013 4:57:13 PM

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