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Good news: Liberal definition of retaliation applies only in certain retaliation cases

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in Discrimination and Harassment,Employment Law,Human Resources

In a landmark ruling last summer, the U.S. Supreme Court made it easier for employees to sue their employers for retaliation. Employees typically sue for retaliation when they suffer an “adverse employment action” in response to filing a legal complaint.

In Burlington v. White, the Supreme Court defined an “adverse employment action” to include just about anything an employer does that would discourage an employee from filing an EEOC complaint or otherwise speaking out about discrimination.

But employers in Georgia and others in the 11th Circuit can breathe a sigh of relief when it comes to this ruling.

Reason: As a new court ruling says, this broad new standard does NOT apply to all discrimination cases, but only to those in which the employee claims his employer punished him for complaining about discrimination.

For other cases, employees must still show that their employer’s action was “materially adverse,” not just that it might dissuade someone from complaining.

Recent case: Lester Wallace sued the Georgia Department of Transportation after it reprimanded him for allegedly misusing its computer equipment. Wallace, who is black, claimed that the department didn’t discipline nonminority employees for doing the same thing.

But the court ruled that wasn’t an adverse employment action. The reprimand didn’t result in a loss of pay or benefits and wasn’t a factor in deciding a promotion, raise or bonus.

Even if Wallace could prove that his employer didn’t discipline others, he couldn’t sue because the reprimand didn’t harm him in any way financially. (Wallace v. Georgia Department of Transportation, No. 06-13345, 11th Cir., 2006)

Final tip: You can continue to use oral and written reprimands as effective disciplinary tools. To avoid possible lawsuits, don’t tie those initial disciplinary measures to pay or promotions.

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