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Retaliation? Well, It Depends...

On June 22, 2006, the United States Supreme Court addressed the issue of retaliation for exercising rights under Title VII in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. (2006). In White, the Court adopted a broad reading of the Title VII anti-retaliation provision and held that retaliation can be based on acts not related to employment or the workplace. The Court also adopted a “reasonable person” standard for analyzing whether an act is sufficiently harmful to constitute retaliation. While “Title VII does not set forth a general civility code for the American workplace”, White has certainly expanded the range of actionable retaliatory acts.

As the Court stated in White, “context matters.” So, a quick review of the facts in White will help illustrate application of the new retaliation standard. Sheila White, a female with forklift operating experience, was hired by Burlington Northern as a track laborer in the Maintenance of Way department in the Tennessee Yard. She was the only female in the department. Shortly thereafter, the sole forklift operator chose to assume another position and Marvin Brown, the department head, assigned White to operate the forklift. The forklift position is cleaner and less arduous than the other positions in the yard.

Within three months of her hire, White complained to Burlington officials about her immediate supervisor. She alleged that he had repeatedly told her that women should not be working in the Maintenance of Way department, and that he had made insulting and inappropriate remarks to her in front of male coworkers. The company conducted an investigation which resulted in a 10 day suspension and a sexual harassment training session for the supervisor. Brown relayed this information to White. So far, so good.

The difficulty arose when Brown removed White from the forklift operation position because the investigation had also revealed coworkers’ complaints that “a more senior man” should have the job. Not surprisingly, White filed a charge with the EEOC, alleging that her transfer constituted sex discrimination and was in retaliation for her earlier complaint about her supervisor. She subsequently filed a second retaliation charge, alleging that Brown had placed her under surveillance and was monitoring her. A third retaliation charge arose when a dispute between White and her immediate supervisor resulted in her suspension without pay. The suspension lasted 37 days, but was ultimately overturned through the company’s internal grievance procedure which resulted in White’s reinstatement and an award of back pay.

The issue before the Supreme Court was two-fold: 1) what type of act is prohibited by Title VII’s anti-retaliation provision; and 2) how harmful must the act be to constitute retaliation.

What Acts are Prohibited?

The Court held that “the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” 548 U.S. at 12. Indeed, the Court recognized that “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing harm outside the workplace.” Id. at 8 (emphasis in original). In support, the Court referenced lower court decisions where retaliation took the form of the FBI’s refusal to investigate death threats a prisoner made against the complaining agent and where an employer filed false criminal charges against a complaining employee. Because Title VII enforcement depends upon the willingness of employees to file complaints and participate as witnesses, the Court held that broad protection from retaliation helps assure accomplishment of the Act’s primary objective. 12. Accordingly, the Court upheld the jury’s determination that White’s transfer, albeit with some overlapping duties, and the suspension without pay, although ultimately overturned, were prohibited acts under the anti-retaliation provision of Title VII.

How Harmful Does the Act Have to Be?

The Court held that, in order to prevail on a retaliation claim, an employee “must show that a reasonable employee would have found the challenged action materially adverse which means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 13. What exactly does that mean?

The Court makes clear that the anti-retaliation provision does not protect an employee from petty slights or minor annoyances, but instead protects an employee from retaliation that produces harm. Moreover, the harm must rise to the level that it would dissuade a reasonable person from making or supporting a claim.

Furthermore, the act must be evaluated from the viewpoint of a reasonable person in the particular circumstances. In the Court’s view, it is pointless to create a laundry list of retaliatory acts because “what would be immaterial in some situations is material in others.” Id. at 14. For example, a work schedule change may have no impact on one worker, but may have a significant impact on a single mother with school-age children. Again, context matters.

Returning to facts of White, the Court upheld the jury’s determination that the transfer and suspension without pay were retaliatory inasmuch as a reasonable person would have found those acts materially adverse (or of sufficient harm to constitute retaliation). White was transferred out of the position that her coworkers considered to be the most desirable in the department. The suspension without pay lasted 37 days and during that time White’s family did not know if and/or when she would be returned to work. A reasonable person in those circumstances would consider that to be materially adverse.

RealSolutions™ for Employers

Retaliation claims are now more viable than ever. Although there is no guaranteed way to completely avoid a retaliation allegation, here are some “best practices” to help avoid retaliation claims and liability:

  • Enforce policies consistently. If and when a complaint is filed, the employer will still have some recourse for discipline if that discipline is appropriate. Sometimes, a supervisor will feel resentment towards a complaining party and only then start taking action with respect to pre-existing performance issues. This will certainly result in a claim of retaliation. Do not dig up a little used policy or rule to “show” a complaining party who’s boss. Be consistent.
  • Document performance issues. Arm yourself with evidence to destroy a causal link between the complaint and any resulting workplace action.
  • Train supervisors. Be sure that front-line supervisors are aware of the risks associated with retaliation claims, and that they have some awareness of what could constitute retaliation. Encourage them to communicate with their supervisors before taking any action concerning a complaining party, even after the complaint is resolved.
  • Keep employee claims & investigations as confidential as possible. Share information about an employee’s claim and any resulting investigation only on a “need to know” basis. If a decision maker can truthfully testify that he/she never knew about the protected activity, it is extremely difficult for the affected employee to prove a causal connection.
  • Remain vigilant. When an investigation or charge is closed, continue to be watchful for problem areas. Alert managers and supervisors who know of the protected activity to the risk of a retaliation claim.
  • Be prompt. Take timely investigatory (and remedial if appropriate) action if you believe that any adverse treatment or employment decision may be motivated in any way by an employee’s participation in protected activity.
  • If in doubt, seek help. If a tough call arises, such as where it appears the conduct of an employee who has engaged in protected activity legitimately warrants corrective action or termination, reach out for advice from an upper level human resource professional or legal counsel. Know the risk associated with each option.

Under the “reasonable person” standard articulated in White, retaliation claims will be judged on a case by case basis. It is more important than ever for employers to be alert, knowledgeable and vigilant concerning the possibility of retaliatory acts.