RISKVUE ARCHIVE | FEATURE STORIES

Retaliation Claims—A “Hidden” Source of Employer Liability

By Dona Kahn

You may think that our Supreme Court, currently being dominated by justices some would characterize as “conservative,” would issue decisions in the field of employment law which are somewhat favorable to management. Time after time, however, employees’ rights under Title VII and other anti-discrimination status have been either protected or expanded upon by this Court. A recent example is the Court’s ruling in Burlington Northern v. White, 126 S.Ct. 2405 (June, 2006). That case dealt with a claim of Sheila White, a woman working in Burlington’s maintenance department, that she was retaliated against for having complained about her supervisor, who thereafter reassigned her from her forklift operator’s job to a dirtier, less desirable job of a track laborer and then suspended her for 37 days without pay for “insubordination” shown toward him. The Burlington decision rejected the holdings of many courts which required that, in order to be actionable a retaliation claim must be confined to tangible actions and harms related to employment at the workplace, i.e., that the challenged action must result in an adverse effect on the terms, conditions or benefits of employment.

The Court found that the language used in Title VII of the anti-discrimination section prohibiting discrimination with respect to an employee’s compensation, terms, conditions or privileges of employment differed significantly from the language of the retaliation section, which simply prohibited “discrimination” without modifying it to relate to employment.

Finding no support for the argument that retaliation should be limited to adverse actions “related to terms and conditions of employment,” the Court concluded that:

employer actions are retaliatory (1) if they “would have been materially adverse to a reasonable employee or job applicant” and (2) “they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

Note that the Court uses the phrase “materially adverse” which would exclude claims of “trivial harms” and “reasonable worker” to make the legal standard less subjective.

Here, the Court found that Ms. White’s reassignment to the more arduous and dirtier laborer job from her forklift operator’s job, and her 37-day suspension without pay, following her sexual harassment complaints, were both materially adverse and retaliatory, notwithstanding the facts that, (1) the track laborer’s job was with the same pay and benefits and even within the same job classification, and (2) Ms. White was fully reimbursed for her 37-day suspension.

The Court noted some examples to demonstrate how “context matters.” A simple schedule change could be materially adverse for a young mother with school age children. A simple refusal by a supervisor to invite a subordinate to lunch could become materially adverse if the lunch were a weekly training lunch that advances the subordinate’s career. In short there can be circumstances transforming otherwise trivial employer actions into materially adverse retaliation.

This holding can be said to have promulgated a fact-intensive standard. This will generally make summary judgment more difficult to achieve for employers and ultimate access to jury trials easier to achieve for employees.

Thus, it is now even easier than before to prevail on a retaliation claim even where the underlying complaint of discrimination which prompted the retaliation has no merit, albeit made in good faith.

The judicial desire to protect against retaliation will also likely extend the Court’s broad reading of Title VII’s retaliation section in later cases to retaliation sections under the ADA, ADEA, and other laws prohibiting discrimination in employment.

Some Practical Advice

In our experience, employees may be able to assert viable claims of retaliation even where there is little or no merit to their underlying discrimination claims. Employers need to review carefully any personnel or other action taken concerning a complaining individual following the filing of a complaint, even where there is no showing of “tangible job loss” such as a reduction in salary, employee benefits or changes to other terms and conditions of employment. The complaining employee is not entitled to preferential treatment but care needs to be taken following an employee complaint of discrimination to make certain that there can be no claim of a retaliatory motive for any “adverse” action.

ABOUT THE AUTHOR

Dona S. Kahn is co-chair of Anderson Kill’s employment and labor law department and has extensive litigation experience in representing management in employment-related matters. Ms. Kahn lectures frequently on employment and discrimination law issues as well as trial practices. She can be reached at 212-278-1812or dkahn@andersonkill.com.

Reprinted with permission from the Winter 2006/2007 issue of Employment Law Insider, a publication of Anderson Kill & Olick, P.C.

riskVue | The webzine for risk management professionals
April 2007