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Even lost opportunity for overtime may be considered illegal retaliation

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in Discrimination and Harassment,Employment Law,Human Resources

After last year’s blockbuster U.S. Supreme Court decision that made it easier for employees to sue for workplace retaliation (Burlington Northern v. White), courts have been trying to figure out how to apply that ruling in real-life situations.

The Burlington ruling defined what’s considered an “adverse employment action” taken by a company in retaliation. It said an adverse action would “dissuade a reasonable employee from making or supporting a charge of discrimination.”

Does that mean that a small change in working conditions may trigger a retaliation lawsuit?

It’s clear that lawyers who represent employees think so. More important, of course, is what the courts ultimately think.

Recent case: Lawrence Doyle filed a reverse-discrimination lawsuit against his employer, the City of San Antonio, alleging that when he complained about bias against white police officers like himself, his supervisors retaliated against him.

Doyle says that after he made his discrimination claim, the company told him that he had to obtain authorization before working more than two hours of overtime.

As a result, Doyle worked less overtime than other officers.

He sued, alleging the new overtime rules being applied to him were an adverse employment action. The trial court dismissed his case, but he appealed. The 5th Circuit Court of Appeals reinstated the case and ordered the trial court to use the new Burlington test. (Despres, et al., v. the City of San Antonio, No. 05-51611, 5th Cir., 2006)   

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