Cornell Study Puts Retaliation Claims in a Class by Themselves

Sep 06, 2016

Contact: Erica Heim, 607.255.6574,

Cornell Study Puts Retaliation Claims in a Class by Themselves

Ithaca, NY, September 6, 2016 - While it is unlawful for race, color, national origin, sex, or religion ever to motivate an employer’s personnel decisions, age, disability, and retaliation must at the moment be “but for” causes to be actionable. A proposed federal bill would make motivation the standard across the board. A new analysis from the Cornell Institute for Hospitality Labor and Employment Relations (CIHLER) argues that retaliation is in a class by itself and should not have the same status as other discrimination causes. The report, “Experimental Evidence that Retaliation Claims Are Unlike Other Employment Discrimination Claims,” by David Sherwyn and Zev J. Eigen, is published by CIHLER in association with the Cornell Center for Hospitality Research (CHR).

Sherwyn is director of CIHLER and the John and Melissa Ceriale Professor of Hospitality and Human Resources at the School of Hotel Administration. Eigen is the chair of the data analytics department at Littler. Sherwyn and Eigen present evidence that retaliation is an entirely different type of situation from other discrimination causes.

As an experiment, they presented legal scenarios that included retaliation, as well as national origin discrimination, to a mock jury. In the scenario, the plaintiff had lodged a sexual harassment complaint, and was then denied a promotion. A solid majority agreed that the plaintiff had established a retaliation claim, and barely 10 percent of the sample agreed with the employer’s contention (in the scenario) that the promotion would have been denied anyway. With odds like that, Sherwyn and Eigen foresee an even greater jump in retaliation claims than what has already occurred.

Moreover, since it seems that juries would readily accept a claim of retaliation, the authors propose that employers would effectively be penalized for their thoughts, rather than their actions.

About the Cornell Institute for Hospitality Labor and Employment Relations
The Cornell Institute for Hospitality Labor and Employment Relations was established in 2013 as a platform for students, employers, employees, unions, and their advocates involved in the hospitality industry. The institute’s mission is to support educational programs, sponsor and disseminate research, and hold conferences and roundtables dedicated to modernizing labor and employment relations, analyzing labor and employment law, and improving human resource management and leadership in the hospitality industry. To achieve this goal, the institute supports classes focusing on labor and employment relations; disseminates empirical, theoretical, and doctrinal scholarship; and sponsors conferences and roundtables.

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About the Center for Hospitality Research
The purpose of the Center for Hospitality Research is to enable and conduct research of significance to the global hospitality and related service industries. CHR also works to improve the connections between academe and industry, continuing the School of Hotel Administration's long-standing tradition of service to the hospitality industry. Founded in 1992, CHR remains the industry's foremost creator and distributor of timely research, all of which is posted at no charge for all to use. In addition to its industry advisory board, CHR convenes several industry roundtables each year for the purpose of identifying new issues affecting the hospitality industry.

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