Supreme Court
Enhances Protection against Retaliation
In
a unanimous decision, the Supreme Court recently provided employees who
complain of discrimination or harassment with greater protection from
retaliation.
The
decision establishes a broader definition of retaliation and an
employee-friendly legal standard. The Court held that the standard for
evaluating a retaliation claim is whether the action against the employee
"well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination."
The
decision interprets Title VII of the Civil Rights Act of 1964. Title VII
forbids retaliation against an employee or job applicant who has "made
a charge, testified, assisted, or participated in: a Title VII proceeding
or investigation."
However,
federal appellate courts have struggled with the scope of Title VII's anti-retaliation provision and what it means to
retaliate against an employee. Many federal appellate courts set a strict
standard making retaliation cases difficult to win. This decision lowers
the standard and will likely result in a continuing increase in retaliation
claims and more cases that get to the jury.
The
broad interpretation by the Court was necessary, according to Justice
Stephen G. Breyer, to effectuate the purpose of
the statute: "Interpreting the anti-retaliation provision to provide
broad protection from retaliation helps assure the cooperation upon which
accomplishment of the Act's primary objective depends."
Complaining Employee Removed From Duties
The
case involved Sheila White, a forklift operator and the only woman in her
department at Burlington, Northern, &
Santa Fe Railway Co. (Burlington).
In 1997, White complained to Burlington
that her supervisor had made insulting and inappropriate remarks to her and
repeatedly told her that women should not be working in his department. Burlington conducted
an internal investigation and suspended the supervisor for ten (10) days.
White
was told about the discipline. At the same time, she was told that she was
being removed from forklift duty and assigned to perform only standard
track laborer tasks. She was told that the reassignment reflected
co-worker's complaints that "a more senior man" should have the
forklift operator position.
White
filed an EEOC charge for gender discrimination based on her reassignment. A
couple of months later she filed a second retaliation charge claiming she
had been subject to increased surveillance and monitoring of her daily
activities. A few days later, a work disagreement between White and her
immediate supervisor resulted in her indefinite suspension for
insubordination. She filed an internal grievance that vindicated her and
gave her back pay. However, White filed an additional EEOC charge based on
the suspension.
Jury Awarded Damages; Burlington
Appealed
White
sued Burlington
for retaliation based in part on the transfer and the suspension. After a
one-week jury trial, she won $43,500 in damages plus medical expenses and
attorney fees.
On
appeal, the confusion over the correct standard to apply in retaliation
cases became apparent. A divided three-judge panel initially reversed the
judgment against Burlington
on the retaliation claims. However, the en banc court subsequently upheld
the judgment for White, but disagreed on the correct standard to apply.
Two Questions before the Court
The
Supreme Court granted review and recognized the split between the circuits
on the standards. The court addressed two fundamental questions: (1) Does
Title VII's protection against retaliation only apply
to actions that are related to employment or occur at the workplace?; and (2) How harmful must the action be to constitute
retaliation?
Court Holds No Link to Employment or Workplace Required
As
for the first question, this case lowered the retaliation standard by
holding that the anti-retaliation provision of Title VII is not confined to
those actions that are related to employment or occur at the workplace. The
Court held that limiting the protections to only work or employment related
actions would defeat the purpose of the anti-retaliation provision.
For
example, the Court cited a case where an employee filed a false criminal
charge against an employee who had complained about discrimination.
Actions Must Be Materially Adverse
As
for the second question, the Court recognized that numerous federal courts
have held that the employee must show that there was an "adverse
employment action" that materially affected the terms and conditions
of employment – such as a firing or cut in wages. Departing from this
strict standard, the Ninth Circuit measures retaliation by any employer
action that is "reasonably likely to deter" an employee from
complaining about discrimination. This standard is the most protective of
workers.
Resolving
this split, the Court held that the employee must show that the employer's
action was "materially adverse to a reasonable employee or
applicant." In adopting this standard, the Court emphasized that
"[i]t is important to separate significant from trivial harms,
"contrasting" employer interference with ‘unfettered access to
Title VII's remedial mechanisms, "which is
actionable, with "the ordinary tribulations of the workplace,"
which generally are not. Petty slights and minor annoyances are to be
excluded.
Reasonable Employee Standard
The
Court adopted an objective standard that requires a retaliation plaintiff
to show that the challenged action "might have dissuaded a reasonable
worker from making or supporting a charge of discrimination." The
focus is on the materiality of the employer's actions and "the
perspective of a reasonable person in the plaintiff's position."
The
Court noted that the significance of any act of retaliation might depend
upon the particular circumstances. The opinion reflected the view that
anti-retaliation law must be flexible enough to account for a diverse
workplace.
For
instance, a shift change might not matter to some employees, but "may
matter enormously to a young mother with school age children."
Even
something seemingly trivial like refusing to invite an employee to lunch
could be retaliation, according to Breyer, if it
is "a weekly training lunch that contributes significantly to the
employee's professional advancement."
In
the Burlington
case, the employee was suspended for thirty-seven (37) days and then
reinstated with back pay. The Court held that a reasonable employee would
find a month without a paycheck to be a serious hardship. Further, an
indefinite suspension could well act as a deterrent to the filing of a
discrimination claim, even if the suspended employee eventually receives
back pay. Moreover, there was considerable evidence that the transfer was
to a position that was more arduous and dirtier, and that the forklift
position was considered a better job.
Effect on California
Employers
While
more favorable to employees in the rest of the nation, the standard adopted
by the Supreme Court is actually less favorable to employees than the
standard that had been used by the Ninth Circuit. The Ninth Circuit had the
most employee-friendly standard of any of the circuits. Thus, in some
aspects, this case actually provides greater protection to California
employers.
Regardless,
retaliation claims are likely to continue to rise. Retaliation claims under
Title VII nearly doubled between 1992 and 2005 according to the EEOC and
account for about 25% of the EEOC's caseload.
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