On June 22, 2006, The United States Supreme Court issued a significant decision with respect to Title VII claims in Burlington Northern & Santa Fe Railway Co. v. White. Title VII is the federal law that prohibits discrimination on the basis of race, color, sex, religion, and national origin. Title VII also prohibits retaliation against a person who makes a claim or asserts a right under the statute. The Supreme Court’s decision identifies what a plaintiff must prove to support a claim of retaliation.
The Case. The plaintiff, Ms. White, accepted a position with the Burlington Northern Railroad operating a hi-lo. Ms. White later made a complaint of harassment to the Company. An investigation ensued and her supervisor was disciplined. Ms. White’s job duties were then changed and she was given dirtier and more difficult tasks, but which were still within her job description. Her compensation and benefits were not changed. She filed a complaint with the Equal Employment Opportunity Commission alleging gender discrimination and retaliation. She later filed a second retaliation complaint alleging that her new supervisor had placed her under surveillance and close monitoring. Shortly thereafter, Ms. White had a verbal disagreement with her new supervisor and she was suspended for insubordination. The suspension lasted 37 days but ended when an internal investigation concluded that the Ms. White had not been insubordinate. She was reinstated with back pay by the Company.
Ms. White’s claims eventually ended up in court. Two retaliation claims went before a jury: the Company’s decision to change her job duties and the Company’s decision to suspend her without pay. The jury found in Ms. White’s favor and awarded her $43,000, even though she had suffered no loss in benefits or wages.
The Legal Issue. The Supreme Court considered what was enough to constitute an adverse employment action sufficient to support a retaliation claim. Specifically, the Court considered whether the employee must show a loss of “compensation, terms, conditions, or privileges of employment” (which is required in a discrimination case) or whether something less is required in a retaliation case.
The Court held that Title VII’s anti-retaliation provisions require a lesser showing. The Court found that the anti-retaliation provisions of Title VII protect an individual from retaliation “that produces an injury or harm.” The Court did note that trivial harms and minor annoyances must be separated from significant injuries. In the Court’s view, “Title VII . . . does not set forth a general civility code for the American workplace.” The Court focused on the concept of “material adversity,” a standard that looks to how an objective “reasonable” employee would respond to the employer’s challenged action. Simply put, if the employer’s actions would cause a “reasonable” employee to be discouraged from exercising rights under Title VII, then the employer has retaliated against the employee in violation of Title VII.
Impact on Employers. How will this decision impact employers? We already know that retaliation claims and lawsuits are on the rise. For fiscal year 2005, retaliation claims represented nearly 30% of the total charges filed with the EEOC (compared with less than 20%of all charges filed in 1995). We also now know that courts will allow employees who suffer retaliation to receive money damages even though the employee may not have suffered any economic loss in compensation or benefits. Further, because the Court adopted a “reasonable” employee standard, it is likely that more cases will get to a jury for decision (as opposed to a judge dismissing the case for failure to state a legitimate claim).
What Should Employers Do? How can employers effectively protect themselves from these claims? First, employers need to know what constitutes protected employee conduct under Title VII. Second, employers need to know the kinds of things could constitute unlawful retaliation. Third, employers need to train supervisors and managers about the issue. Finally, when an employee has exercised a right under Title VII, employers must closely monitor the situation to insure that retaliation does not occur.
What is protected activity under Title VII? The most obvious examples include filing a lawsuit alleging violation of Title VII or filing a claim with the EEOC. However, an employee also invokes the protections of Title VII when she makes an internal allegation of discrimination or harassment to her employer (for example, a complaint of sex harassment under an employer’s antiharassment policy) or offers support to a coworker who has made such a claim.
What actions might constitute unlawful retaliation against an employee that do not affect “compensation, terms, conditions, or privileges of employment”? Essentially, the Supreme Court recognized that supervisors, managers and coworkers all have ways to retaliate against a coworker who made a complaint, without affecting the coworker’s pay or benefits. The Supreme Court has told employers that they cannot let this happen. Although the Court recognized that there are trivial and minor things that happen in the workplace, more significant acts of retaliation simply will not be tolerated. Following are some examples of acts of retaliation that could be found to be unlawful:
Reassignment to less desirable duties (even if within the job classification)
Cancellation of an employee recognition award
Negative job references to prospective employers
Off premise threats
What do employers tell supervisors and managers about this issue? All supervisors and managers already should be receiving training on diversity, discrimination and harassment. That training should be expanded to include information about subtle forms of retaliation that may now exacerbate an issue. Further, if an employee does exercise a right under Title VII, employers should meet with supervisors and managers involved and remind them about the risks of retaliation. This could involve discipline or discharge under the employer’s policies and individual legal liability under some state laws, such as Michigan’s Elliott-Larsen Civil Rights Act.
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Louis C. Rabaut is a partner in the Grand Rapids office of Warner Norcross & Judd LLP. He specializes in labor & employment law and has handled litigation involving trade secrets, covenants not to compete, wrongful discharge, and discrimination claims. Warner Norcross & Judd is a full-service law firm with 180 attorneys in four offices throughout Michigan: Grand Rapids, Metro Detroit, Holland and Muskegon. Lou may be reached directly at 616.752.2147. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.