Newton v. LVMH: Protected Activity Does Not End When Litigation Begins

The Second Circuit Recognizes That Refusing to Settle a Discrimination Case Can Be Protected Opposition—and Rejects an Artificially Narrow View of Retaliation

The Second Circuit’s September 21, 2026 decision in Newton v. LVMH Moët Hennessy Louis Vuitton Inc., No. 25-1697-cv, slip op. (2d Cir. Sept. 21, 2026), is important because it addresses a part of employment-retaliation law that courts too often analyze as though the employee’s protected activity occurs at a single point in time. An employee complains. The employee files a charge. The employee files a lawsuit. The court then looks forward from that particular event and asks whether some later adverse action occurred sufficiently close in time to permit an inference of retaliation.

Newton recognizes that this framework can be far too mechanical when the employee remains employed while actively litigating discrimination claims against the employer.

The protected opposition does not necessarily end when the complaint is filed. It can continue through the litigation itself. And depending upon the circumstances, the employee’s refusal to abandon, compromise, or settle those discrimination claims can itself communicate continued opposition to the discriminatory conduct.

That is precisely what the Second Circuit held.

Andowah Newton, a Black and Afro-Latina attorney employed by LVMH Moët Hennessy Louis Vuitton Inc. (“LVMH”), alleged years of sexual harassment, assault, internal complaints, retaliation, litigation, arbitration, and public opposition to what she claimed had occurred in the workplace. She began working for LVMH as litigation counsel in 2015, was later promoted to Vice President, Legal Affairs, and had received positive performance reviews. By April 2019, she had filed an action in New York Supreme Court alleging sexual harassment and retaliation under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). The First Department later compelled those claims to arbitration pursuant to an arbitration agreement she had signed before beginning her employment.

But Newton remained employed.

That fact is central to what followed.

In July 2022, Rodney C. Pratt became LVMH’s Chief Legal Officer and Newton’s direct supervisor. According to the complaint, the following month Pratt sought a one-on-one meeting with Newton, without attorneys present, to discuss or negotiate settlement of the discrimination claims she was already pursuing against the company. Newton declined the proposed meeting—or, as the Second Circuit noted, another paragraph of the complaint characterized her conduct as simply not responding to the request. Newton alleged that Pratt’s behavior toward her then changed dramatically and that a series of retaliatory acts culminated in her December 1, 2022 termination.

The district court dismissed the retaliation claims. Among other things, it concluded that Newton’s refusal to meet with Pratt to discuss settlement was not protected activity.

The Second Circuit held otherwise.

The opposition did not disappear because the discrimination case was already pending

The significance of Newton begins with the court’s treatment of Title VII’s opposition clause. Title VII prohibits retaliation against an employee because she “opposed any practice made an unlawful employment practice” by the statute. 42 U.S.C. § 2000e-3(a). The NYSHRL and NYCHRL contain their own prohibitions against retaliation. N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7).

The Second Circuit began with a familiar proposition: protected opposition includes activity intended to resist, confront, or withstand discrimination. Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015). An employee does not need a particular incantation. When an employee communicates to the employer that she believes unlawful employment discrimination has occurred, that communication ordinarily constitutes opposition. Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 276 (2009).

There was nothing controversial about recognizing Newton’s original lawsuit and arbitration demand as protected activity. The important question was what happened after that.

The Second Circuit reasoned that if filing a discrimination claim communicates that the employee believes she has been unlawfully treated, refusing to terminate the pursuit of that same claim through settlement may, depending upon the context, communicate the continuation of that opposition. The proper question is whether the employer understood, or reasonably could have understood, the employee’s refusal as a continued assertion of opposition to unlawful employment practices. Newton, slip op. at 21–23.

That is an important clarification because retaliation does not occur only immediately after a complaint is filed. Employment litigation can continue for years while the employment relationship itself remains intact. During that period, the employee may continue to litigate, testify, appeal, participate in discovery, reject settlement demands, insist upon particular settlement terms, refuse to execute releases, or otherwise maintain a position adverse to the employer concerning the discrimination allegations.

The employer knows exactly why that litigation exists.

Newton rejects the proposition that the law protects the employee for commencing the discrimination case but somehow ceases to protect her when she refuses to end it on terms desired by the employer.

The Second Circuit explained that positions taken during a pending discrimination lawsuit—including during depositions, settlement discussions, trial, or appeal—can potentially constitute protected opposition. Newton, slip op. at 21–22. The court did not hold that every refusal to settle automatically becomes protected activity. It expressly declined to create such a per se rule. Whether the conduct is protected depends upon the circumstances and, specifically, upon whether the employer could reasonably understand that conduct as opposition to unlawful discrimination.

That qualification is sensible. A routine disagreement over dollars, confidentiality, tax treatment, attorney’s fees, or some unrelated term does not necessarily communicate opposition to discrimination merely because it occurs during settlement negotiations.

But Newton’s allegations presented something materially different.

By August 2022, LVMH knew that Newton had spent years asserting that she had been subjected to unlawful employment practices. She had filed a state-court discrimination action. She had opposed LVMH’s attempt to compel arbitration. After losing that issue, she had actually commenced the arbitration. She had also spoken publicly concerning the alleged harassment and retaliation, including in congressional testimony. Against that history, the Second Circuit concluded that Pratt reasonably could have understood her refusal to meet with him to discuss settlement as communicating that she continued to maintain that she had been wronged and continued to seek legal redress.

The context supplied the meaning.

That is the part of Newton that should matter well beyond its particular facts.

An employee does not have to repeat the words “I oppose discrimination” every time

The district court’s approach also reflected another recurring problem in retaliation litigation: treating protected activity as though the employee must repeatedly and expressly identify discrimination every time she engages in subsequent opposition.

The Second Circuit rejected that proposition too.

There was some ambiguity in Newton’s complaint concerning what she did when Pratt sought the settlement meeting. One allegation said that she refused. Another said she simply did not respond. The defendants therefore argued that Newton never told Pratt that she was declining the meeting because she was continuing to oppose unlawful discrimination.

But protected opposition need not always be explicit.

Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009), recognized that a person can oppose conduct without initiating a formal protest or expressly announcing that opposition. And under the NYCHRL, the New York Court of Appeals had already made the point directly in Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011): opposition does not require an employee to state explicitly that discrimination is occurring.

Newton applied that principle to the litigation context.

The Second Circuit held that the absence of an express statement connecting Newton’s refusal to the discrimination claims was not dispositive. Conduct itself can communicate opposition when the surrounding circumstances make its meaning reasonably apparent to the employer. Thus, even if Newton merely failed to respond to Pratt’s invitation, the complaint plausibly alleged that Pratt could understand that response in light of years of litigation and public opposition concerning precisely the discrimination claims he wanted to discuss settling.

This point has obvious implications for pleading retaliation claims.

Courts should not artificially strip away the history between the employee and employer and then examine the latest communication in isolation. An email, refusal, objection, insistence upon counsel, decision not to participate in a private meeting, rejection of a release, or unwillingness to abandon an existing discrimination claim may mean very little standing alone. The same conduct may mean something entirely different after years of discrimination complaints and litigation.

That does not eliminate the employer-knowledge requirement. It applies it realistically.

Once the employer already knows that the employee is challenging discrimination, the question is no longer whether every subsequent act of opposition contains another express accusation of discrimination. The question is whether the employer reasonably understood what the employee was opposing.

The defendants also argued that recognizing refusal to participate in settlement discussions as potential protected activity would discourage settlement. The Second Circuit properly rejected that argument. Employers already know that terminating an employee because she filed a discrimination lawsuit can constitute retaliation. There is no logical reason why the employer should be permitted to wait and retaliate later because the employee refused to settle that same lawsuit. The statutory protection cannot sensibly disappear somewhere between the filing of the complaint and the negotiation of its resolution.

The causation analysis is just as important as the protected-activity holding

The district court also concluded that Newton had not plausibly alleged the necessary causal relationship between the protected activity and her December 2022 termination.

The Second Circuit again disagreed.

Newton’s refusal to participate in the requested settlement meeting occurred sometime in August 2022. She was terminated on December 1, 2022. The interval therefore could have been approximately four months. The Second Circuit observed that its cases have never established a rigid temporal cutoff and have recognized that periods of four or five months can, depending upon the circumstances, support an inference of causation. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); Abrams v. Department of Public Safety, 764 F.3d 244, 254 (2d Cir. 2014); Gorman-Bakos v. Cornell Cooperative Extension of Schenectady County, 252 F.3d 545, 555 (2d Cir. 2001).

But the stronger part of the court’s analysis was not its willingness to accept four months.

It was the court’s refusal to treat temporal proximity as the entire causation inquiry.

Newton alleged a series of events between the August settlement request and her December termination. Pratt allegedly required her to obtain preapproval before agreeing to participate in outside panels or conferences. LVMH allegedly objected to at least one speaking engagement. Pratt allegedly inserted himself into some of Newton’s matters while simultaneously excluding her from other important communications. Newton alleged that Pratt ignored her during weekly meetings except to criticize her. She alleged exclusion from workplace events. Those events were followed by the termination.

The Second Circuit relied upon Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018), which recognized that courts evaluating retaliation causation can consider an intervening pattern of antagonism or a “drumbeat of retaliatory animus,” even where each intervening act does not independently constitute an actionable adverse employment action.

This distinction is particularly important.

Employment-discrimination decisions frequently become distorted when every factual allegation is tested individually against the ultimate liability standard. If exclusion from one meeting would not independently support a retaliation claim, the fact gets discarded. If increased supervision is insufficient standing alone, it gets discarded. If a supervisor’s changed behavior does not independently qualify as materially adverse, it gets discarded. The analysis eventually becomes a collection of isolated incidents instead of an examination of what actually happened over time.

But evidence does not have to constitute a separately actionable employment violation to be evidence of retaliatory motive.

A change in supervision may matter. A new restriction may matter. Exclusion may matter. Increased scrutiny may matter. Hostility beginning immediately after protected activity may matter. A departure from ordinary procedure may matter. Each fact can help answer the ultimate causation question even if the employee could not bring a separate cause of action based upon that fact alone.

That is precisely why Newton matters in cases involving an extended retaliatory campaign. The law does not require a court to close its eyes to everything occurring between the protected activity and the ultimate adverse action merely because the intervening conduct might not independently support damages.

The sequence itself can be evidence.

Newton also preserves an important distinction between Title VII and New York law

There is another part of the opinion that deserves attention because federal courts still too frequently discuss Title VII, the NYSHRL, and the NYCHRL as though they impose interchangeable standards.

They do not.

For Title VII retaliation, the ultimate causation standard remains but-for causation under University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 360 (2013).

The Second Circuit expressly recognized that the NYSHRL and NYCHRL impose a different standard. Under those statutes, the plaintiff need only establish that retaliatory animus was a motivating factor—in the court’s words, that it “played any role at all in the challenged conduct.” Newton, slip op. at 28 (quoting Edelman v. NYU Langone Health System, 141 F.4th 28, 49 (2d Cir. 2025)).

That distinction cannot be treated as dicta of no practical consequence. It affects pleading, summary judgment, trial proof, and ultimately the instructions given to the jury.

It is also important not to overread Newton in the opposite direction. The court analyzed certain aspects of the Title VII, NYSHRL, and NYCHRL retaliation claims together because Newton did not contend that the protected-activity principles materially differed as applied to the facts presented. The court expressly noted that limitation.

Nothing in Newton authorizes federal courts to erase the independent construction required under the NYCHRL or the liberal-construction requirement governing the amended NYSHRL. The case instead reinforces a point that should already be obvious: even where the same factual allegations support retaliation claims under all three statutes, the statutes do not necessarily impose the same ultimate causation burden.

For New York practitioners, that difference must remain visible throughout the case.

The EFAA ruling is the important limitation

Newton did not prevail on her separate effort to use the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), 9 U.S.C. §§ 401–402, to move older claims from arbitration into federal court.

That part of the decision deserves careful treatment because it substantially limits how Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74 (2d Cir. 2024), can be used to bring pre-March 3, 2022 claims within the EFAA through the continuing-violation doctrine.

Congress made the EFAA applicable to disputes or claims arising or accruing on or after March 3, 2022. Newton sought to add claims that were already pending in arbitration, including retaliatory-hostile-work-environment claims under the NYSHRL and NYCHRL. Those claims were based substantially on conduct that had already been asserted in her June 2021 arbitration demand. The Second Circuit therefore concluded that the claims had accrued before the EFAA became effective. The question became whether later events caused those claims to reaccrue as part of a continuing violation.

The Second Circuit said no.

That conclusion does not retreat from Olivieri. In Olivieri, the court recognized that a hostile-work-environment claim may accrue and reaccrue as additional acts forming part of the same continuing unlawful employment practice occur. Where qualifying conduct continues after March 3, 2022, the EFAA may therefore apply even though the hostile environment began earlier.

But Newton makes clear that merely putting the word “retaliation” around both the pre- and post-EFAA conduct does not establish a continuing violation.

The conduct must actually be sufficiently related.

The Second Circuit focused on both the “who” and the “how.” The earlier allegations centered substantially on different actors, including Lloyd Doran and former General Counsel Louise Firestone. The later alleged retaliation was principally attributed to Pratt, who became Newton’s supervisor in July 2022. The nature of the alleged conduct also changed. Earlier allegations involved sexual harassment and assault, allegedly deficient investigations, workplace treatment, performance reviews, remote-work disputes, and the retaliatory environment that Newton claimed developed around those events. The later allegations were materially different and centered substantially on Pratt’s conduct and ultimately Newton’s termination.

That difference mattered.

A termination occurring after March 3, 2022, does not automatically revive an older hostile-work-environment claim for EFAA purposes simply because the employee believes both were retaliatory. A later discrete act must still form part of the same course of discriminatory conduct before the continuing-violation doctrine can cause the older hostile-environment claim to reaccrue.

The Second Circuit therefore affirmed the denial of leave to add the older claims, holding that they had accrued before the EFAA became effective and had not reaccrued afterward as part of a continuing violation.

For pleading purposes, that means the connection cannot be conclusory. If a plaintiff intends to rely upon Olivieri to establish post-EFAA reaccrual, the complaint must show why the later conduct actually belongs to the same hostile environment. Identity of the actors matters. The nature of the acts matters. Continuity matters. The relationship between the earlier and later conduct matters.

Newton does not close the Olivieri door. It requires a plaintiff to establish why the later event actually passes through it.

The larger lesson from Newton is about how retaliation actually develops

What makes Newton important is that the Second Circuit did not reduce retaliation to a date on a calendar.

The district court effectively looked for a new, express act of protected opposition close enough to Newton’s termination. The Second Circuit instead examined the relationship between the parties as it actually existed.

By August 2022, LVMH did not need another discrimination complaint from Newton to understand what she was opposing. There had already been years of complaints, litigation, arbitration, and public advocacy. Pratt’s request concerned settlement of those very claims. In that setting, Newton’s unwillingness to participate could plausibly communicate continued opposition without another formal declaration that she opposed discrimination.

The same contextual analysis carried into causation. The question was not simply whether four months separated the refusal and the termination. The allegations concerned what happened during those four months and whether those events, taken together, plausibly supported an inference that the employment relationship changed after Newton refused to discuss settlement.

That is a much more realistic way to analyze retaliation.

Employers rarely announce retaliatory intent. The proof usually develops through chronology, changed treatment, departures from prior practice, escalating antagonism, restrictions imposed after protected activity, inconsistent explanations, and the ultimate employment decision. A court that takes each event out of sequence and asks whether it independently creates liability can miss the very evidence from which retaliatory motive is properly inferred.

Newton resists that mistake.

The decision is also important for employees who remain employed while litigating discrimination claims. An employer cannot treat the pendency of litigation as a protected period only until it decides that settlement should occur. The employee’s continuing pursuit of the case, including a refusal to settle under circumstances reasonably communicating continued opposition, can remain protected activity.

That proposition should not be remarkable. If Title VII protects the employee from termination because she filed the discrimination case, it would make little sense to permit the employer to terminate her because she later refused to surrender it.

The Second Circuit recognized exactly that.

And that is why Newton v. LVMH matters. It places retaliation back where it belongs: in the entire factual relationship between the protected opposition and the challenged employment action, not in an artificially isolated snapshot of either one.

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