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Annoyance or illegal retaliation: Courts draw the line

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in Employment Law,Human Resources

Quick: What’s the fastest-growing form of illegal discrimination claimed by U.S. employees? If you guessed race, sex or age bias, you’d be wrong.

Claims of retaliation — in which employees claim they were punished for an earlier, legal complaint — now account for 30% of all EEOC claims, up from 22% a decade ago.

A landmark U.S. Supreme Court decision last summer cleared the way for such lawsuits by establishing a broader legal standard for what counts as illegal retaliation. (Burlington Northern v. White) To rise to the level of retaliation, an employer’s action must be “materially adverse” enough to dissuade a reasonable worker from filing a discrimination charge.

Now, lower courts are starting to interpret that ruling and define what that standard means in individual cases. The news is good for employers: In most cases, courts have said that, to be “materially adverse,” an employer’s actions must be more than the trivial annoyances and petty slights that often occur at work.

Recent case: Manal Hanani, an employee of Egyptian descent, filed an EEOC national-origin claim after she was passed over for promotion. She later added a retaliation charge because she said the company began editing her written reports more heavily after she filed her original claim. Plus, Hanani had to do more microfilming, which meant she sometimes had to stay late.

The court tossed out her retaliation claim, saying none of those slights and inconveniences amounted to the sort of “materially adverse” actions that the Supreme Court meant when it came up with the new retaliation standard. (Hanani v. State of New Jersey Department of Environmental Resources, et al., No. 05-3157, 3rd Cir., 2006) 

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