Retaliation Against Perceived Protected Activity In 283 F.3d 561, 562 (3d Cir. 2002), an ADA case, the Fogleman v. Mercy Hospital, Inc., court declared that the retaliation provision in Title VII protected an employee against retaliation for protected activity. the statutes forbid an employer's taking adverse action “perceived” “Because against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer's discriminatory animus was correct and that, so long as the employer's specific intent was discriminatory, the retaliation is 283 F.3d at 562. For the fairly unusual case in actionable.” which the employer is alleged to have retaliated for perceived rather than actual protected activity, the instruction can be modified consistently with the in Fogleman. court’s directive Determinative Effect Instruction 5.1.7 requires the plaintiff to show that the protected activity had a plaintiff’s on the allegedly retaliatory activity. This is the standard typically used in “determinative effect” Title VII pretext cases outside the context of retaliation. Comment 5.1.2. Title VII claims that See do not involve retaliation can alternatively proceed on a mixed-motive theory under 42 U.S.C. § 2000e-2(m), subject to the affirmative defense stated in 42 U.S.C. § 2000e-5(g)(2)(B), see Comment 5.1.1, but the mixed-motive proof framework is unavailable for Title VII retaliation claims. 133 S.Ct. 2517, 2533 (2013) VII See Univ. of Tex. Sw. Med. Ctr. v. Nassar, (“Title retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the at 2534 (rejecting contention that the mixed-motive test could id. Price Waterhouse employer.”); be used for Title VII retaliation claims).
Retaliation Against Perceived Protected Activity In Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002), an ADA case, the court declared that the retaliation provision in Title VII protected an employee against retaliation for “perceived” protected activity. “Because the statutes forbid an employer's taking adverse action against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer's discriminatory animus was correct and that, so long as the employer's specific intent was discriminatory, the retaliation is actionable.” 283 F.3d at 562. For the fairly unusual case in which the employer is alleged to have retaliated for perceived rather than actual protected activity, the instruction can be modified consistently with the court’s directive in Fogleman. Determinative Effect Instruction 5.1.7 requires the plaintiff to show that the plaintiff’s protected activity had a “determinative effect” on the allegedly retaliatory activity. This is the standard typically used in Title VII pretext cases outside the context of retaliation. See Comment 5.1.2. Title VII claims that do not involve retaliation can alternatively proceed on a mixed-motive theory under 42 U.S.C. § 2000e-2(m), subject to the affirmative defense stated in 42 U.S.C. § 2000e-5(g)(2)(B), see Comment 5.1.1, but the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”); id. at 2534 (rejecting contention that the Price Waterhouse mixed-motive test could be used for Title VII retaliation claims).
5_Chap_5_2018_March.docx