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Teresa M. Thompson

Teresa M. Thompson Employment & Labor

tthompson@fredlaw.com
612.492.7347
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The United States Supreme Court Defines Retaliation and Expands Employee Rights

By: TERESA M. THOMPSON

September 2006

Retaliation claims are on the rise, accounting for one out of every four employment claims filed. Courts have long recognized that employer or supervisor mishandling of protected complaints can turn a weak discrimination claim into a strong retaliation claim. On June 22, 2006, the United States Supreme Court (in Burlington Northern & Santa Fe Railway Co. v. White) solidified this point with respect to Sheila White’s claims arising under the federal anti-discrimination law, Title VII.

How does this decision affect your company? What do you need to know to protect against retaliation claims?

Facts Underlying the Supreme Court Case

Sheila White was the only woman in her department at one of Burlington Northern’s (“BN”) train yards. BN hired her as a “track laborer” – a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, BN assigned her to the “less arduous and cleaner job” of forklift operator.

Two months after her hire, White complained to BN officials about sex-based comments by her supervisor. BN suspended the supervisor and ordered him to attend a sexual-harassment training session. However, BN also removed White from forklift duty and assigned her to perform only the track laborer tasks (her co-workers had complained that a “more senior man” should have the easier forklift operator job).

White filed a charge with the EEOC claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her complaint about the supervisor’s comments. She filed a second retaliation charge shortly thereafter, claiming she had been placed under surveillance and that her daily activities were being monitored. Days following receipt of the charge, BN suspended White without pay for insubordination when she disagreed with her immediate supervisor about what truck should transport her from one location to another. White filed an internal grievance. The company determined that she had not been insubordinate, reinstated her, and awarded back pay for the 37-day suspension. White filed an additional charge of retaliation based on the suspension.

In the end, White filed a civil action in federal court, claiming that the reassignment of job duties and the suspension were in retaliation for her complaints. The case was tried to a jury, which found in favor of White. The case made its way up to the U.S. Supreme Court on appeal, and the Supreme Court upheld the jury verdict in favor of White. In doing so, the Court clarified the standard for establishing retaliation under Title VII.

The attorneys for BN argued that retaliation claims should be restricted to employer conduct that adversely affects an individual’s compensation, terms, conditions, or privileges of employment – major employment actions such as firing or demotion. The Court rejected this argument, expanding the concept beyond the more conservative notions of retaliation. The Court noted that an employer may retaliate against an individual even by “taking actions not directly related to his employment or by causing him harm outside the workplace.” The individual must prove that the employer’s action would have been materially adverse to the reasonable employee or applicant, such that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.

What Action Amounts to Retaliation?

The Supreme Court emphasized that whether an act is retaliatory depends upon the circumstances of each case. In addition to such actions as termination and demotion, examples of retaliatory actions, depending on the specific circumstances, might include:

  • A material change in job duties to less desirable duties.
  • Temporary suspension. The Court noted that, as in White’s case, more than a month without pay (even if later reimbursed) could well dissuade an employee from complaining.
  • Schedule changes. The Court noted that while a schedule change might not impact all employees, it "may matter enormously to a young mother with school age children."
  • Exclusion from important meetings. Exclusion from lunch would normally be considered trivial; however, exclusion from a weekly training lunch that contributes significantly to the employee’s professional advancement might be enough.

The Supreme Court reiterated that there must be a significant, as compared to a trivial, harm. Examples of trivial harms might include petty slights and annoyances, personality conflicts, snubbing by supervisors and co-workers, and poor manners.

How To Proactively Address Retaliation Claims

Too often, employees make complaints relating to perceived discriminatory treatment or retaliatory activity within the workplace informally to supervisors or managers, rather than formally to upper management or the human resources department. Supervisors and managers may disregard the informal complaints because they believe, or are even confident, that there is no merit to the complaints, and thus do not feel it is appropriate to pass them along to upper management or the human resources department for investigation. They may also feel personally affronted by the allegations. These types of responses are unfortunately the cornerstone of retaliation claims. Employers are encouraged, especially in light of the Supreme Court’s recent decision, to take a proactive approach to preventing retaliation claims:

  • Train supervisors and managers to properly address and document complaints of potential discriminatory, harassing, or retaliatory activity, and to inform upper management and/or the human resources department of both formal and informal complaints in accordance with internal policy and practice.
  • Consider informal and formal complaints of retaliation with the same seriousness and deliberation that you would complaints of sexual or other harassment or discrimination. Conduct investigations, and handle such complaints as appropriate under internal policy and procedure. Provide guidance as appropriate to supervisors and managers about how to deal with day-to-day employment matters with the employee after the complaint is made.
  • Update policies relating to harassment, discrimination, and retaliation, with the assistance of counsel, to underscore the importance of nonretaliation and investigating reports of retaliation, providing examples where appropriate.
  • Address performance issues as they arise. Employees who have been counseled regarding performance issues prior to making complaints are less likely to link performance-related actions (demotion, transfer, termination) to the complaints.

Retaliation claims are expected to continue to increase in light of the Supreme Court’s recent decision and may cause difficulty for employers where reports of discrimination, harassment, and retaliatory activity are not handled properly. Our employment law group would be pleased to assist in training, policy review, and advice on these topics, as well as in the defense of agency charges or lawsuits involving retaliation claims.