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Train supervisors on new risk of workplace retaliation

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in Discrimination and Harassment,Employment Law,Firing,Human Resources

If your organization doesn't currently make it clear that it prohibits supervisors from retaliating against employees who complain about discrimination, now's the time to hammer home that message.

Reason: Your organization's risk of facing a retaliation-based employment lawsuit just took a big leap forward with a landmark U.S. Supreme Court ruling. The decision establishes a broad national legal standard for Title VII retaliation claims that, essentially, makes it easier for employees to file and win such cases.

"The floodgates are really going to open on these cases," said Allison West of Employment Practices Specialists, LLC. "This creates a real vulnerability for employers."

Employers will now have a harder time convincing judges to dismiss retaliation claims at the summary judgment phase. That means more retaliation suits will go to trial, where the ruling is subject to the whims of a jury.

As a result, it's more important than ever for managers and supervisors to avoid disparaging remarks about workers' race, sex, age or religion, and be cautious about the timing of their discipline and employment decisions so they don't even appear to retaliate.

Establish a strong anti-retaliation policy, and alert supervisors to these new legal risks. Follow up with employees who make complaints. 

The new legal standard: To successfully bring retaliation claims to court, employees always have to prove these two elements:

  1. They engaged in a protected activity (i.e., filed an EEOC charge, testified in an investigation, etc.).
  2. They were subjected to an "adverse action" because of that protected activity.

Previously, different federal courts set different standards on what constituted an "adverse action" that could trigger retaliation claims.

Most courts had said that only ultimate employment decisions—firings, demotions, pay cuts, etc.—could rise to that standard. Employers, obviously, favored that limited definition, which prevented employees from suing for retaliation based on minor slights, such as not being invited to lunch.

But the Supreme Court adopted a broader standard, saying a reasonable person would have to find only that the retaliation "materially adverse" to the point that it would dissuade the individual from making a discrimination charge. That's a very broad definition, and it's confusing, which will lead to more lawsuits.

Two other key points:

  1. Nonemployment actions included. The high court made clear that retaliation can include actions that occur outside the workplace. (The court cited an example in which the FBI retaliated against a worker by refusing to investigate death threats against him.)
  2. "Context matters," as Justice Stephen Breyer wrote in the decision. That means trial courts will have to determine on a case-by-case basis whether "reasonable" employees would be intimidated by an employer's actions, based on the context of their job and situation. For example, a schedule change may not bother some workers, but it could be a big problem for a mother with small kids.

This case-by-case approach will cause major headaches as employers (and trial courts) make judgment calls on what would be retaliation given the worker's individual circumstances.

Case specifics: Sheila White, who worked on a forklift at a railroad yard, filed an internal sexual harassment complaint. Soon after, the company transferred White to a more physically demanding track-laborer job, and then suspended her without pay.

After an internal grievance process, the company reinstated White with back pay after 37 days, but she was still placed in the track-laborer job.

White filed a retaliation lawsuit, claiming that the transfer rose to the level of retaliation under Title VII. A jury awarded her $43,000, and the 6th Circuit Court of Appeals agreed.

The company appealed to the U.S. Supreme Court, arguing that, because White hadn't been fired or lost any pay, the reassignment didn't amount to an adverse action.

The Supreme Court sided with White, saying that requiring an employee to spend more time on "the more arduous duties and less time performing those that are easier and more agreeable" would be a good way to "discourage an employee ... from bringing discrimination charges."

The court added that if a reasonable person would be deterred from filing a complaint because of the reassignment, then White would be able to pursue her claim. The 37-day suspension was found to fall within the scope of retaliation. (Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259, 2006)  

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