Retaliation Standard Established By Supreme Court
October, 2006
Introduction
Q. Can an employer reassign an employee to different tasks within his or her job description without fear of a retaliation claim?
Q. Is an employer who reinstates an employee with back pay protected from a retaliation claim?
Q. Is an employer protected from a retaliation claim if the conduct is outside the workplace?
On June 22, 2006, the United States Supreme Court, in the Burlington Northern Santa Fe Railroad v. White decision, answered “No” to all three of the above questions. In doing so, the Court resolved a division of opinion among the Appellate Courts across the country as to what conduct constitutes actionable discriminatory retaliation. The Court also may have expanded the scope of retaliation claims which an employee can bring in the future.
Rise In Retaliation Claims
Retaliation claims nationwide are on the rise. Over one quarter of the EEOC’s docket consists of retaliation claims. In 2004 alone, there were 20,000 retaliation claims actually filed. Some employment law observers anticipate that the Court’s decision in the Burlington Northern case will open the flood gates to even more retaliation claims.
Case in a Nutshell
Retaliation:
- Is conduct which would dissuade a reasonable employee from supporting or filing a complaint.
- Does not necessarily have to rise to the level of denying employment, promotion, compensation or termination.
- Can consist of conduct which occurs outside the workplace
Facts
In the Burlington Northern case, the plaintiff, Sheila White, was hired as a “track laborer.” At a prior employer, White had operated a fork lift and when another employee at Burlington who operated a fork lift for the railroad was reassigned, White was given the additional responsibility of operating the fork lift. White’s job description as a track laborer included operation of the fork lift among her job duties.
A few months after assuming the fork lift responsibilities, White complained that her immediate supervisor had repeatedly told her that women should not be working in the department and that the supervisor made insulting and inappropriate remarks about White in front of male colleagues. The supervisor was suspended for ten days and ordered to attend a sexual harassment training session. At the same time, White was removed from her fork lift duty and assigned to the more standard track laborer tasks.
Procedural History
White filed a charge of discrimination with the EEOC. Two months later she filed a second charge for retaliation claiming that her supervisor had placed her under surveillance and monitoring. A few days after the second charge was filed, she engaged in a disagreement with a supervisor about what truck should transport her from one location to another and White was suspended for 37 days without pay. After an internal grievance process, White was reinstated to her track laborer position and awarded back pay for the 37 days. White filed yet a third charge alleging that the suspension also was retaliatory. A jury ultimately awarded White $43,500.00 in compensatory damages including $3,250.00 in medical expenses.
Upon review, the United States Court of Appeals for the Sixth Circuit affirmed the judgment. But the court was divided on what standard to apply in the determining what constitutes actionable discriminatory retaliation. However, in spite of its division on what standard to apply, the Sixth Circuit majority held that there had been a materially adverse change in the terms and conditions of White’s employment and, therefore, that White had been a victim of actionable retaliation.
Pre-Burlington, Companies Vulnerable To Differing Standards
The Sixth Circuit was not alone in its uncertainty about the standard to apply to retaliation claims. Other Appellate Courts across the country also differed.
Prior to the Supreme Court’s ruling in the Burlington case, whether a company was liable for retaliation or not depended on which of the federal Appellate Circuits your company was located in and/or where the alleged incident occurred. The issue was whether the retaliation must have a materially adverse effect on the terms, conditions or benefits of employment? Or, whether a less restrictive standard applied such as conduct that would dissuade a reasonable employee from complaining? The Supreme Court opted for a less restrictive standard.
Supreme Court’s Decision
Workplace Conduct, Burlington:
In the Supreme Court, Burlington first argued that the reassignment of the employee, White, to her other duties as a track laborer was not retaliation. Burlington reasoned that White’s job description had always included both her former duties as a track laborer and her recent fork lift duties. Therefore, her reassignment did not effect the terms and conditions of her job. The Supreme Court disagreed. The Court stated that whether the employer’s challenged action was retaliatory should be determined by whether the action was material to a “reasonable employee.” That is, would the employer’s action have “dissuaded a reasonable worker from making or supporting a charge of discrimination?” To be sure, the Court stated, reassignment of job duties is not automatically actionable. However, the Court concluded that by taking away White’s more prestigious responsibility of operating the fork lift, Burlington would dissuade a reasonable worker from filing a discrimination charge.
Next, Burlington argued that the 37-day suspension without pay lacked statutory significance because Burlington ultimately reinstated White with back pay. Again, the Court disagreed. The Court, in part, ruled that even if the employee is eventually reinstated with back pay: “A reasonable employee facing the choice between retaining his job (and paycheck) and filing a discrimination complaint might well choose the former.”
Non-Workplace Conduct:
However, as stated earlier, the Court went further. The Court went on to observe that an employer also can “effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” By way of example, the Court referred to two earlier cases before the Court in which employers had engaged in retaliatory conduct against employees outside the workplace. In one of those cases, the employer had refused to investigate death threats made against an employee and his wife. In another earlier case, an employer had filed false criminal charges against an employee.
Ray Of Hope For Employers?
Can a ray of hope be found for employers in the Court’s decision? Perhaps so; the Court stated that it was setting an “objective standard” which is judicially administrable rather than a standard based on subjective feelings. Under the Supreme Court’s ruling, lower courts will have to consider what the reaction of a reasonable employee would be when determining who would be dissuaded from making or supporting a charge of discrimination. Not considered are the subjective feelings or reactions of a particular employee.
The court also stated that in order to constitute actionable retaliation the action must constitute a material adversity. That materiality test, the Court stated would separate out significant claims from the trivial:
Title VII, we have said, does not set forth a general civility code for the American workplace… . An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.
What Does The Future Hold?
While the Supreme Court has turned to a “reasonable employee” standard, that standard may be clouded by the fact that the reasonable employee is to be judged from the perspective of the person in the plaintiff’s position. Conduct should be judged from “the perspective of a reasonable person in the plaintiff’s position,” considering “all the circumstances.” What this means will have to be fought out in the trenches of litigation as employers seek to apply the Burlington decision to everyday situations. Thus, whether it is an automatic ticket to a jury will take time to determine.
Also open is the question of what non-workplace conduct the courts will consider to be within the purview of retaliation. Will the lower courts limit such conduct to incidences similar to those mentioned in the Supreme Court’s opinion? Or, will the lower courts take a more expansive or more restrictive interpretation?
There also is some speculation about whether, in future decisions, the courts might apply the Burlington standard to Americans with Disabilities Act claims or to Age Discrimination in Employment Act claims. Similarly, there are questions about whether state or local civil rights agencies might apply the Burlington standard to their respective state or local statutes.
Practice Tips Checklist
What can you do to protect your companies? Here are some practical tips.
√ Advise supervisors of the implications of the Burlington case in their reassignment decisions.
√ Require supervisors to report changes in job tasks to upper level management.
√ Make it clear to supervisors that such changes could be construed as retaliation.
√ Independently monitor reassignments and changes in responsibilities.
√ Emphasize that conduct outside the workplace could be construed as retaliatory.
√ Amend company policies to specifically prohibit retaliatory conduct outside the workplace.
√ State in policies and job descriptions that re-assignment or additional responsibilities may be temporary depending on company needs.
√ Remind supervisors that employees who lodge discrimination complaints are not to face reassignments or changes in responsibilities without upper management approval.
√ Require documentation of routine managerial matters such as scheduling and performance reviews.
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