Online Feature

Diminishing Retaliation Liability

Alex B. Long, Sandra F. Sperino

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

In Hernandez v. Yellow Transportation, Inc., John Ketterer, a White dockworker at Yellow Transportation’s Dallas terminal, alleged that the Dallas terminal was, to put it mildly, an unpleasant place to work. Unhappy about what he viewed as racial discrimination directed at his coworkers, Ketterer picketed the company. As a result, Ketterer claimed, other employees subjected him to retaliatory harassment. This retaliation included “name-calling, physical intimidation, false accusations, vandalization of his belongings, verbal threats, and observing violence and illegal behavior.”