Cornell Legal Analysis: Two Supreme Court Decisions Expand Definition of Retaliation

Two relatively recent decisions by the U.S. Supreme Court raised concerns regarding retaliation, which is a fast-growing charge in discrimination cases. Participants in both the 2008 and 2009 Labor and Employment Law Roundtables, produced by the Cornell Center for Hospitality Research, discussed these cases in great detail, because the participants wondered whether the decisions would open the way for employees to win determinations that the employer retaliated against them for alleging employment discrimination. This type of case is of particular interest to lodging, food service, and other segments of the hospitality industry, because of their working conditions and their labor-intense operations.

Because of this discussion, roundtable leaders, David Sherwyn and Gregg Gilman conducted a detailed analysis of the Supreme Court decisions. Their law analysis, published by the center, finds that while the two decisions expand certain aspects of retaliation, that expansion does not necessarily mean that employees will win in court. The report, "Retaliation: Why an Increase in Claims Does Not Mean the Sky Is Falling," by Sherwyn and Gilman, explains the implications of these two Supreme Court decisions. This new legal research is available at no charge at
www.hotelschool.cornell.edu/research/chr/pubs/roundtableproceedings/.

"We looked at two cases that seemed to go against employers," said Sherwyn, an associate professor of law at the Cornell School of Hotel Administration. "We have to note that retaliation was already the fastest growing cause of action in discrimination law. We agree that the decisions will probably encourage more retaliation claims, and it's true that employers will need to be more circumspect in certain actions. But we cannot see how these rulings will automatically mean more employer losses if the case is litigated."

Gilman is partner and co-chair, labor and employment for Davis and Gilbert LLP, which is a corporate partner of the Center for Hospitality Research. He notes that the two cases in question are Crawford v. Metropolitan Government of Nashville, decided in 2009, and White v. Burlington Northern, handed down in 2006. Sherwyn and Gilman's discrimination law analysis notes that in the Crawford case, the Supreme Court expanded the definition of the opposition clause, which is invoked when an employee resists or otherwise expresses disapproval of the actions of an employer or other employee. In the White decision it expanded the type of employer action that might be considered unlawful retaliation.

About the Center for Hospitality Research
A unit of the Cornell School of Hotel Administration, The Center for Hospitality Research (CHR) sponsors research designed to improve practices in the hospitality industry. Under the lead of the center's 71 corporate affiliates, experienced scholars work closely with business executives to discover new insights into strategic, managerial and operating practices. The center also publishes the award-winning hospitality journal, the Cornell Hospitality Quarterly (formerly the Cornell Hotel and Restaurant Administration Quarterly). To learn more about center and its projects, visit www.chr.cornell.edu.

Center partners and sponsors: AIG Global Real Estate Investment, American Airlines Admirals Club, Davis & Gilbert LLP, Deloitte & Touche USA LLP, Denihan Hospitality Group, Expedia, Inc., Four Seasons Hotels and Resorts, Fox Rothschild LLP, General Growth Properties, Inc., HVS, InterContinental Hotels Group, job.travel, JohnsonDiversey, Inc., Jumeirah Group, LRP Publications, Marriott International, Inc., Marsh's Hospitality Practice, Mobil Travel Guide, Nestlé, PricewaterhouseCoopers, Proskauer Rose LLP, Smith Travel Research, Southern Wine and Spirits of America, Inc., SynXis (a Sabre Holdings Corporation), Taj Hotels Resorts and Palaces, Thayer Lodging Group, TIG Global, Travelport, WATG, and WhiteSand Consulting.

Center friends: 4Hoteliers.com • American Tescor, LLC • Argyle Executive Forum • Caribbean Hotel and Restaurant Buyers Guide • Cody Kramer Imports • Cruise Industry News • DK Shifflet & Associates • ehotelier.com • EyeforTravel • Fireman's Fund Insurance Company • Gerencia de Hoteles & Restaurantes • Global Hospitality Resources • Hospitality Financial and Technology Professionals (HFTP) • hospitalityInside.com • hospitalitynet.org • Hotel Asia Pacific • Hotel China • HotelExecutive.com • Hotel Interactive • Hotel Resource • International CHRIE • International Hotel and Restaurant Association • International Hotel Conference • International Society of Hospitality Consultants (ISHC) • iPerceptions • KPMG Japan/Global Management Directions • Lodging Hospitality • Lodging Magazine • Milestone Internet Marketing • MindFolio • PKF Hospitality Research • The Resort Trades • RealShare Hotel Investment & Finance Summit • Resort+Recreation Magazine • RestaurantEdge.com • Shibata Publishing Co. • Synovate • The Lodging Conference • TravelCLICK • UniFocus • WageWatch, Inc. • WIWIH.COM


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