Category Archives: Retaliation

Kasten v. Saint-Gobain: Supreme Court Rules on Oral FLSA Employee Complaints

Kasten v. Saint-Gobain: Supreme Court Rules That Oral Employee Complaints Are Afforded FLSA Retaliation Protection


On March 22, 2011, the United States Supreme Court issued its long-awaited opinion in Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (Mar. 22, 2011), holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”).

The Court’s decision has potentially significant implications beyond the FLSA, as several other federal statutes—including the Occupational Safety and Health Act (“OSHA”), the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act—include similar language in their anti-retaliation provisions.  Of particular importance to employers, the holding reaffirms a best practice for employee complaints: Pay attention to all employee complaints, regardless whether they are oral or written.


Kasten, a former employee in Saint-Gobain’s Portage, Wisconsin facility, received repeated warnings, and ultimately was terminated, for violating company policy requiring hourly employees to clock in and out of work. See Kasten v. St. Gobain Performance Plastics Corp., 570 F.3d 834, 836 (7th Cir. 2009).  Following his termination, Kasten filed a lawsuit alleging that he was discharged in retaliation for making oral complaints to his supervisors and human resources personnel that the location of the company’s time clocks prevented employees from recording their time spent “donning and doffing” protective gear.  See id. at 835-36. Answer→

Associational Discrimination: Supreme Court Decides Thompson v. North American Stainless

On January 24, 2011, the United States Supreme Court decided the case of Thompson v. North American Stainless, LP, No. 09-291. The Court unanimously (8-0, with Justice Kagan recusing herself) reversed the 10-6 en banc decision from the Sixth Circuit. The Supreme Court held that Title VII’s anti-retaliation provision reached a Charging Party’s fiancé. The decision’s significant practical ramifications are discussed at the conclusion of this article.

Background Facts

The facts of this case are straightforward. The defendant company, North American Stainless (NAS) terminated one of its employees, Miriam Regalado. She filed a Charge of Discrimination with the EEOC, claiming that she had been discharged on the basis of gender in violation of Title VII’s prohibition against sex discrimination. Three weeks after Regalado filed her Charge, NAS also terminated her fiancé, Eric Thompson. Thompson then independently filed a Charge of Discrimination with the EEOC, claiming that he was a victim of retaliatory conduct by NAS. Answer→

Retaliation (again), Quirky Question # 136

Quirky Question # 136:

I know you’ve written a number of analyses of retaliation claims, but our company has a new twist to this subject.  One of our employees filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming sex discrimination.  In her Charge, she identified several other employees, none of whom has ever complained about any unfair treatment.  One of the employees identified in the Charge recently claimed that we retaliated against her.  However, she had never even complained about any unfair treatment, let alone filed a Charge.  We understand that we cannot take adverse action against someone who “participates” in an investigation or who “opposes” discrimination.  But, this employee did neither.  She was just listed as a knowledgeable person on a Charge.  I presume that the anti-retaliation do not go this far.  Do they? Answer→

Associational Gender Discrimination, Quirky Question # 118

Quirky Question # 118:

One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees.  We advised him that we would investigate.  Apparently, however, our investigation was not moving sufficiently fast for him.  When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant.  We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more.  The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct.  Based on this escalating situation, we terminated Mr. X’s employment.He now has filed a charge for “associated discrimination” and retaliation.  Say what?  Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend? Answer→

Managing the Chronic Complainer, Quirky Question # 117

Quirky Question # 117:

We have an employee who has become a “chronic” complainer.  She initially complained to her manager that her annual bonus was incorrectly calculated and that she believed the alleged error was because of her sex and/or age.  The manager referred the complaint to Human Resources, which thoroughly reviewed the bonus calculations for that department and concluded no error or discrimination occurred.  The employee’s manager and a Human Resources representative met with her to explain how her bonus had been calculated. The employee was not happy that her bonus would not be changed, but she could not explain why she believed the company’s bonus calculation was wrong.

It has been six months since that meeting, and things have really gotten out of hand.  The employee complains that everything and anything is sex or age discrimination.  She has begun to voice her complaints at team meetings, which is distracting and is starting to have a negative effect on team morale.  She also sends long e-mails to her manager and Human Resources, listing a litany of issues and demanding an immediate response.  We have done our best to give this employee the benefit of the doubt – Human Resources has met with her and her manager on numerous occasions, but, so far, there has been no merit to her complaints.  Needless to say, she is wasting everyone’s time and it has gotten to the point that she seems more focused on complaining than getting her job done.  Before this, she was a good performer.  At what point can we say “enough is enough”?  Can we discipline this employee for making too many baseless and distracting complaints? Answer→

Reporting Charge to Another Company, Quirky Question # 105

Quirky Question # 105:

I am a senior manager with a manufacturing company based here in Minnesota.  Several months ago, we received a job application for an open position from an employee of a vendor with whom we work quite closely.  We did not select that person for the open position and he filed a Charge of age discrimination against our company with the EEOC.

A few weeks after the Charge was filed, I happened to get a call from a friend of mine at this vendor.  I mentioned that their employee had filed a Charge against us.  The next thing I knew, the vendor fired the employee.  Then, the employee filed another Charge against our company with the EEOC.  How can this be? Answer→

Accommodating Disabled Employee With Offensive Habit, Quirky Question # 100

Quirky Question # 100:

We have an employee who suffers from Post Traumatic Stress Disorder, is under the care of a psychiatrist through the Veterans Administration and takes medication for this condition.  He also chews tobacco at work.  There have been a number of employee complaints about the disgusting nature of the tobacco habit.  The employee claims that his psychiatrist feels that chewing tobacco helps him to reduce the stress level at work and we should allow him to continue.

We do not have a policy regarding the use of tobacco products at work, except for a designated smoking area away from the building entrance per a state law.  We would like to institute a new policy addressing the entire issue of tobacco use.  Could this be viewed as retaliatory? Answer→

Retaliation, The Crawford Decision

Analysis of the Crawford Decision

On January 26, 2009, the United States Supreme Court issued its opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595 (Argued October 8, 2008; decided January 26, 2009).  The Supreme Court unanimously held that the anti-retaliation provision of Title VII reached an employee who “speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.”