Piggybacking off my colleague Tim Reed’s recent post providing the background/plot and discussing employer liability issues in Amazon Studios’ The Boys, I am happy to continue expounding upon the various employment law issues that arose in season one. The series presents an interesting and unique perspective on the emotional, legal, and monetary effects of the commercialization of superheroism, and I admittedly binge-watched it. I promise it was mostly for research purposes.

Until I researched further, my general opinion of Starlight’s powers was that she was unusually strong and could manipulate light, similar to X-Men’s Storm, who can manipulate weather (particularly lightning). However, per FANDOM, she has the ability to absorb electricity around her to fuel her powers, which include shooting intense bright light from her hands.

On the show (which FANDOM indicates differs greatly from the comics), Starlight was raised religiously and appeared socially inexperienced and naïve. Though powerful, she was demure and humble. Her dream was to be a part of The Seven, and that dream was realized. She was admitted into The Seven early in the season.

Spoiler Alert

Upon her early introduction to the Deep (similar to Justice League’s Aquaman)—one of The Sevenshe was sexually assaulted. Following a heartfelt conversation with Hughie, one of The Boys, she decided to publicly reveal this incident at a religious retreat during her keynote speech.

While Starlight’s revelation was empowering to her and other women, much to Vought International’s (founder of The Seven and manager of the Supes) dismay, there was also backlash against the organization. After Starlight’s revelation, Madeline Stillwell, manager of Vought, directed Starlight to wear a more revealing leotard as her new uniform, and Starlight refused.

Stillwell then threatened to remove Starlight from The Seven, and Starlight responded that such action will be viewed as retaliation for revealing the sexual assault. To make a long story short, she was not terminated, and the Deep was reassigned from the big city to Sandusky, Ohio.

But what if she had been terminated, suspended, or reassigned (in lieu of the Deep) to Sandusky?

Starlight would need to establish a prima facie case of retaliation. A prima facie case is essentially a case that, unless rebutted, would be sufficient to assert a particular position. The prima facie case would include statutorily protected activity (in this case, likely under Title VII), causation, and adverse action (suspension, termination, and possibly reassignment).

Putting aside whether Starlight’s revelation constituted statutorily protected activity, she must establish a causal connection between the protected activity and the adverse action. When establishing the causal connection, an adverse action cannot be retaliatory unless it follows the protected activity and the employer knows beforehand. Often, the order and timing of events are crucial, but a short time period between the protected conduct and the adverse action is not always conclusive.

Importantly, if there is intervening wrongdoing by the employee in the period between the protected activity and the adverse action, the link of causation can be broken. Therefore, Starlight’s insubordination regarding refusal to wear the leotard could come into play.

And most importantly, if pretext is at issue (and it likely would be in these circumstances because there would be competing reasons for termination), the employer could rebut the employee’s prima facie case by articulating a legitimate, nonretaliatory reason for her termination, which could be, in Starlight’s case, her refusal to wear the leotard.

Bottom Line

Fortunately, most allegations of protected conduct by employees do not involve underlying allegations as egregious as these. However, employers can benefit from an understanding of the respective burdens of the employer and employee if a retaliation case ends up in court.