Washington Law Review


Protecting Protected Activity

December 01, 2020 | 95 Wash. L. Rev. 1891


The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect.

While legal scholars have paid much attention to the establishment of a but-for causation requirement in retaliation claims brought under employment discrimination statutes, they have paid less attention to other workplace statutes. This Article focuses on the transference of a but-for causation requirement to cases involving retaliation under minimum labor standards statutes.

The Article critiques judicial application of the but-for causation standard by explaining the inconsistent outcomes that may result for similarly situated plaintiffs, by critiquing the judiciary’s reliance on a purely private law, negligence-based model rather than appreciating the role of minimum labor standards statutes as public law, and by demonstrating how application of traditional canons of statutory interpretation support a causation standard lower than but-for causation.

To remedy these problems, the Article suggests that courts should allow the common law tort of wrongful discharge in violation of public policy—a tort that addresses the intersection of public law and private law—to inform its interpretation of employment retaliation statutes generally and minimum labor standards legislation in particular.

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