Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Employment Retaliation

Proving retaliation by employers against employees has become easier under state law and more difficult under federal law as a result of two recent developments.

In Minnesota, the whistleblower statute, Minn. Stat. §181.932, has been amended, enlarging the rights of employees who claim to be subjected to reprisals for reporting improprieties to management. Major changes include extending protected conduct to those who complain of “planned” violations of law, rather than past or current transgressions; granting whistleblower status to reports of violations of common law; establishing knowing falsity or reckless disregard of the truth as the criteria for determining “good faith”; and prohibiting employees from engaging in post-termination reprisal, among other matters.

The measure is likely to facilitate more whistleblower lawsuits, while leaving intact some of the most common defenses of employers, such as lack of causal connection between the whistleblowing activities and any adverse action by management.

But retaliation cases by employees will be harder to pursue for claimed violations of the federal antidiscrimination laws.  Late in June, the Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, ruled that retaliation claims, the fastest growing type of actions under Title VII of the Civil Rights Act, cannot be brought unless an employee can show that engaging in statutorily protected conduct was the determinative reason for retaliatory action by the employer.  The high court imposed a “but for” causation standard for retaliation claims: the same test used in age discrimination cases under the Age Discrimination in Employment Act (ADEA).

The decision will make it easier for employers to seek and obtain summary judgment in many retaliation cases under federal law.  It also may lead more clients to assert retaliation claims under state law if the Minnesota courts do not follow the federal standard under the Minnesota Human Rights Act, which remains an unresolved issue.

Marshall H. Tanick

Hellmuth & Johnson, PLLC


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