Ithaca, NY, September 7, 2016 – While it is unlawful for race, color, national origin, sex, or religion ever to motivate an employer’s personnel decisions, age, disability, and retaliation must at the moment be “but for” causes to be actionable. A proposed federal bill would make motivation the standard across the board. A new analysis from the Cornell Institute for Hospitality Labor and Employment Relations (CIHLER) argues that retaliation is in a class by itself and should not have the same status as other discrimination causes. The report, “Experimental Evidence that Retaliation Claims Are Unlike Other Employment Discrimination Claims,” by David Sherwyn and Zev J. Eigen, is published by CIHLER in association with the Cornell Center for Hospitality Research (CHR).
Sherwyn is director of CIHLER and the John and Melissa Ceriale Professor of Hospitality and Human Resources at the School of Hotel Administration. Eigen is the chair of the data analytics department at Littler. Sherwyn and Eigen present evidence that retaliation is an entirely different type of situation from other discrimination causes.
As an experiment, they presented legal scenarios that included retaliation, as well as national origin discrimination, to a mock jury. In the scenario, the plaintiff had lodged a sexual harassment complaint, and was then denied a promotion. A solid majority agreed that the plaintiff had established a retaliation claim, and barely 10 percent of the sample agreed with the employer’s contention (in the scenario) that the promotion would have been denied anyway. With odds like that, Sherwyn and Eigen foresee an even greater jump in retaliation claims than what has already occurred.
Moreover, since it seems that juries would readily accept a claim of retaliation, the authors propose that employers would effectively be penalized for their thoughts, rather than their actions.