Category Archives: Retaliation

Quirky Question # 238, No Laughing Matter – Company Found Liable for Wrongfully Terminating Independent Contractor’s Agreement


My company relies on independent contractors, over whom we don’t exert control. They often joke around with each other. I’m not liable for employment discrimination if I terminate one of them after they complain about another, right? Answer→

Quirky Question # 183, Retaliating Against an Applicant Who Previously Sued Under the FLSA


We recently made an offer to an applicant for an important job at our company. The offer was conditioned on a satisfactory background check and her passing our standard drug test. She had no problem with the drug test. But, when we did the background check, we discovered that she had sued her former employer for violations of the Fair Labor Standards Act. Based on that fact, we want to pull the offer. Do you see any problems with that decision? Are we buying litigation? Answer→

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→