On June 22, 2006, it got a whole lot easier for employees to win monetary damages from their employers for retaliation. Reason: A unanimous U.S. Supreme Court ruled that adverse actions needn't involve an economic loss or an "ultimate employment decision" to constitute illegal retaliation. An adverse action need only "interfere with an employee's efforts" to ensure that he/she is not discriminated against in the workplace.
Using this new, definitive standard, the High Court sided with the full 6th Circuit in ruling that suspending an employee who complained about sexual harassment for 37 days without pay (over Christmas, no less) and transferring her to a more physically demanding job rose to the level of illegal retaliation, even though she was reinstated with full pay, and the transfer involved a position in which she received the same wages and benefits and worked the same hours as her original job.
While the new standard is more favorable to workers than what had been used by most federal courts in the past, the Supreme Court did note that employees who file discrimination complaints are not immune from "those petty slights or minor annoyances that often take place at work and that all employees experience." It's up to trial courts to determine on a case-by-case basis whether "reasonable" employees would be hesitant to complain because of actions taken by the employer.
In deciding whether employment actions are designed to prevent reasonable persons from complaining, Justice Stephen G. Breyer wrote that "context matters."
Speaking about the context of the case before the court, Breyer wrote, "Many reasonable employees would find a month without a paycheck to be a serious hardship," especially when that month occurs during the Christmas holiday. (Burlington Northern & Santa Fe Railway Co. v. White, U.S. Sup. Ct., No. 05-259, 2006)
View all adverse employment actions in the same light as a court would. Ask if the action could have a more severe affect than intended. For example, Breyer noted that a schedule change might not be seen as retaliation, unless the affected employee is a young mother with children. Or failure to invite a worker to lunch wouldn't normally add up to retaliation, unless the luncheon included a training session critical to the employee's job success.
An attorney for the railway asked, however: "Is the average employer going to know that the woman whose shift has been changed has a...child at home?"
The likely response from employees working at smaller companies is a resounding yes. Whether the trial courts agree with them has yet to be seen.