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Hospitality Leadership Through Learning
Faculty & Research

Retaliation: Why an Increase in Claims Does Not Mean the Sky Is Falling

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By:  David Sherwyn, J.D. and Gregg Gilman J.D.

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Executive Summary: Two decisions by the U.S. Supreme Court appear to open the door wide for employees to charge their employers with retaliation in connection with discrimination accusations. The Court expanded certain aspects of retaliation, which was already the fastest growing cause of action in discrimination law. Despite the Court’s rulings, however, no evidence shows that employee plaintiffs are more likely to be successful. In Crawford v. Metropolitan Government of Nashville the Supreme Court expanded the definition of opposition, which occurs when an employee resists or otherwise expresses disapproval of the actions of an employer or other employee. The Court decided that opposition could occur if the employee expresses disdain for a practice, even if he or she does not actually complain about it. In the other case, White v. Burlington Northern, the Court created a standard for retaliation that expands the proscribed employer actions taken in the wake of a discrimination claim. Burlington Northern moved White from one set of duties to another within her job description, but the Court determined that such an action might discourage an employee from filing a discrimination charge. Thus, the Court determined that the change constituted retaliation. Despite opening the retaliation gate wider and perhaps encouraging more employees to file a complaint, the Court has not necessarily made it easier for plaintiff employees to prevail. This analysis is an outcome of discussions at the 2008 and 2009 Labor and Employment Law Roundtables.

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About David Sherwyn, J.D.

David Sherwyn (BS, JD, Cornell University) is an associate professor of law at Cornell University's School of Hotel Administration. He is a research fellow at the Center for Labor and Employment Law at New York University's School of Law. In addition, Dave is of counsel to the law firm of Shea Stokes Roberts & Wagner. Prior to joining the School of Hotel Administration, Dave practiced management-side labor and employment law for six years.

Dave has published articles in the Stanford Law Review, Berkeley Journal of Labor and Employment Law, Fordham Law Review, University of Pennsylvania Labor and Employment Law Journal, and the Cornell Hospitality Quarterly.

Dave teaches H ADM 387: Business and Hospitality Law, a required class with more than 100 students. In addition, each spring, Dave teaches H ADM 485: Employment Discrimination Law and Union-Management Relations and HA 481 Labor Relations in the Hospitality Industry. Dave received a Hotel School Teacher of the Year Award in 1998, 1999, 2000, 2001, 2002, and 2005, 2007 and 2008. Dave has been nominated for the fraternity and sorority teaching award twelve times and has won the award twice.

In 2002 Dave conceived of, organized, and hosted the Center for Hospitality Research's first Hospitality Industry Roundtable. Because of the success of the Labor and Employment Law Roundtable, the Center now hosts Roundtables in each of the disciplines that are represented in the School.

For more information visit http://www.hotelschool.cornell.edu/research/facultybios/faculty.html?id=72