6A

Oct. 7, 2013

The Journal Record

journalrecord.com

Perspectives
DAILEY

COLUMN

Guest

Two little words, one big effect

A recent U.S. Supreme Court ruling has firmly set what once was a moving target, providing clarity to employers and employees regarding retaliation claims in Title VII discrimination lawsuits. The court's decision in University of Texas Southwestern Medical Center v. Nassar has settled an old argument over the standard by which a retaliation claim, when an employee claims that he was fired because he complained about discrimination, must be measured. For most Title VII claims, a plaintiff must show only that his or her protected status (race, religion, gender, etc.) was a "motivating factor" in the employer's decision to take action against the plaintiff. For example, a plaintiff had to show only that her gender was taken into account in her employer's decision to terminate her employment. In other words, she simply had to show that her gender was a "motivating factor" in her firing. But the standard for evaluating Title VII retaliation claims has, until now, been unclear. Some courts subscribed to the easier-to-meet "motivating factor" standard, while others applied the traditional "but for" causation standard that is applicable to most tort claims. With its Nassar ruling the Supreme Court cleared up the confusion. In a 5-4 decision, the court has established that a plaintiff claiming retaliation must prove that an adverse employment action taken by an employer was directed toward the plaintiff as a retaliatory action. Simply put, a plaintiff must now show that he would not have been terminated "but for" his complaint or lawsuit against his employer. Two little words, one big effect. One of the surprising things about the decision was the extent to which the court openly addressed the practical implications of the decision, noting the steep rise in the number of retaliation claims faced by employers and the ease with which such a cause of action can be fabricated by a plaintiff. The court even offered a hypothetical example of an employee who anticipates termination due to poor performance and so complains about harassment, just so he can file a claim when the inevitable termination occurs. The Nassar ruling serves to underline the necessity for employers to document the legitimate reasons for terminating or otherwise disciplining employees so that it is clear that age, gender or some other protected attribute was not the reason for the employment decision.

The editorial cartoon above does not necessarily reflect the views of The Journal Record. We believe in and facilitate a free exchange of ideas from both ends of the political spectrum.

Jim

FROMmY PERSPECTIVE

What would God do?

I have often been struck by the divide between the environmental community and everyone else. It seems we so often try to separate everyone into distinguishable categories: left or right. Then we cusp these debates with religion, economics, and a distaste for that Obama guy, and we forget that indeed our faith first calls us to be stewards of this place we call home. It is not a conservative issue vs. a liberal issue, or a Republicans vs. Democrats. Nor is it a Christian vs. non-Christian issue. Indeed, according to Psalms 24:1: "The earth is the Lord's and the fullness thereof." In fact, the Bible depicts that God made a covenant with the earth and all of the species within it. Consider Genesis 9:12-13, where it read that "God said to Noah and to his sons with him: 'I now establish my covenant with you and your descendants after you and with every living creature that was with you - the birds, the livestock, and all the wild animals, all those that come out of the ark with you - every living creature on earth." So, in fact, we all are called to be good stewards of the earth - and I love it when I see so-called Cool Congregations, an effort for greater sustainability from participating congregations, like my own home church Mayflower Congregational UCC. This higher calling is working to make a difference, preserving our world and promoting environmental stewardship, church to church. Consider the fact that the National Council of Churches, which is cornprised of Protestant and Orthodox denominations, has been working to lobby for national and international action on climate change. Consider the fact that an organization called Christians Caring for Creation is actually suing the U.S. Fish and Wildlife Services for failing to protect endangered species. The Evangelical Environmental network is comprised of evangelical churches that believe that the body of Christ should be an example of what God's people can do in the world to solve some of the great challenges of our time. Our politics might divide us. Our disagreements about tax policies and the Second Amendment might make your blood boil. But, as a nation, and indeed the world, we are working to do something that no one has ever done before. That is, live in a world, where by mid-century 9 billion people will be its inhabitants. If that doesn't sound crowded, or likely to stress our ecosystems, I would encourage you to move three more people into your home today and see how that goes. Change is coming. It's going to require action. This means we will have to do more with the food, land, water and other limited resources that we have. We will need to be smarter about the energies we produce and consume and probably tackle issues of parity and disparity across the globe. We need to do more with what God gave us, all of us. We must do so while working to avoid the most dangerous consequences of climate change, population growth and the ongoing, tragic destruction of our natural environment. In the words of my favorite Scripure, Micah 6:8, which asks all of us: "What does the Lord require of you?" The answers: prayer and action.

Erin Dailey is a shareholder in the Tulsa office of GableGotwals. Her practice includes labor, employment and insurance law as well as employee benefits matters. She can be reached at (918) 595-4863 or edailey@gablelaw.com .

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.