What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.
Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because she reported alleged harassment and proceeded with this case. Yet the record does not support her claims. During the relevant period, Burton was granted tenure by a unanimous vote and the University held a public ceremony celebrating Burton’s receipt of a grant from AT&T. Dean Throop even sought an upward salary adjustment for her after she had brought a charge with the Wisconsin ERD. Burton’s frustrations may be significant, but they do not amount to actionable retaliation.
This court (correctly, in my opinion) concluded that no reasonable juror could find that an employer which promotes an employee only months after an alleged harassment complaint would nevertheless harbor a retaliatory motive.
The lesson here is not to promote or give a raise to every employee who engages in protected activity. Instead, take away this lesson. At the end of the day, retaliation and discrimination cases hinge on a “more likely” standard. In considering the totality of the evidence, is is more likely than not that the employer retaliated/discriminated against the employee? That burden becomes difficult for an employee to overcome when an employee—despite some slights and unfair treatment following protected conduct—enjoys subsequent benefits.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at jhyman@meyersroman.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.
