Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
On June 22, 2006, the U.S. Supreme Court issued a decision regarding retaliation in the workplace that is likely to increase potential employer liability. This article will discuss this decision and provide recommendations to address this potential liability.
As all employers should be aware, Title VII of the Civil Rights Act of 1964 forbids employment discrimination against any individual based on that individual’s race, color, religion, sex, or national origin. Typically, these types of employment discrimination claims deal with failure to hire, discharge, compensation, and other terms and conditions of employment relating to that specific job.
The act contains another separate and important provision of which many employers are unaware that prohibits “retaliation” against an employee or applicant because such individual opposed any practice made unlawful by the act, or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.
This is a developing area of employment law liability for employers and will certainly continue to be so because of the Supreme Court decision rendered on June 22, 2006, in the case of Burlington Northern and Santa Fe Railway v. White. This decision resolved a dispute in the federal courts as to what standard of proof an employee must show to establish that the employer unlawfully retaliated.
Underlying Case
The plaintiff, Sheila White, was the only woman working in the Maintenance of Way Department at the railroad’s Tennessee yard. She was hired as a “track laborer,” a job involving removing and replacing trash components, transporting trash material, cutting brush, and clearing litter and spillage from the railroad right of way. Some time after commencing her employment, she began to operate the forklift as her primary responsibility while continuing to perform other track laborer duties.
Several months into her employment she complained to company officials that her immediate supervisor had repeatedly told her that women should not be working in the department. She also claimed that he made insulting and demeaning remarks about her in front of male employees. The company conducted an investigation and suspended her supervisor for 10 days and required him to complete sexual harassment training.
Shortly after her supervisor was disciplined, a senior supervisor told plaintiff that he was removing her from her forklift job and assigning it to a more senior man because the job was a “less arduous and cleaner job.” The plaintiff filed a complaint of discrimination and retaliation with the Equal Employment Opportunity Commission. A few days later, the plaintiff got into a disagreement with another supervisor and she was accused of insubordination, resulting in a 37-day suspension without pay. The railroad eventually concluded she had not been insubordinate and she was reinstated with back pay.
Jury Verdict
Despite her reinstatement with back pay, the plaintiff continued to prosecute her case that eventually went to trial before a jury. She testified that the retaliation consisted of making her perform more physically demanding and dirty work, that the loss of the forklift job caused her a loss of prestige, and that employees resented her for having the forklift job.
In addition, she claimed that her family had to live for 37 days without income when she did not know if she would return to work. She sought medical treatment and claimed that the conduct depressed her during Christmas.
The jury found in her favor with a verdict of $43,500 in compensatory damages (including emotional distress) and $3,250 in medical expenses. The company will also be liable for her attorney’s fees as determined by the court.
Standard of Proof
The Supreme Court affirmed the lower court’s decision in favor of the plaintiff and in so doing set out the standard of proof that a plaintiff must establish in a retaliation case. Under some previous lower court decisions, the plaintiff would have been required to prove that there had been a “materially adverse,” that is, a significant negative change in the terms and conditions of employee’s employment, to prevail. The railroad claimed that this was the appropriate standard and that the plaintiff had not met it since she had been reinstated to her job as a track laborer (although not to the forklift position) with full back pay.
The Supreme Court held that in order to prove a case of unlawful retaliation, the plaintiff must prove that the challenged action was “materially adverse,” but that the burden of proof was not as strict as the prior court decisions or the company contended. The new, less stringent, standard of “materially adverse” action announced requires the employee to prove that the employer’s actions were severe enough that they might well have dissuaded any “reasonable worker” from making or supporting a charge of discrimination.
The decision will undoubtedly create additional litigation as the courts attempt to determine what employer actions might dissuade a “reasonable worker” from making or supporting a charge and what constitutes material adversity. The Supreme Court recognized that it will require separating “significant” from “trivial” harms in the workplace and described certain actions that might not constitute a significant harm:
• sporadic use of abusive language or gender related jibes;
• occasional teasing;
• snubbing by supervisors and co-workers.
Unfortunately, these few examples cannot suffice to guide employers regarding the many instances of employee behavior that might or might not be considered materially adverse by a court.
What is a Reasonable Employee?
In defining the “reasonable employee,” the Supreme Court also emphasized that this is to be an objective standard rather than a subjective one. In order to make the determination whether the employee is in fact being reasonable, the Supreme Court based the inquiry on evaluating the significance of the employer’s actions within the “context” of the particular circumstances in which it occurred, again giving minimal examples:
• A retaliatory schedule change in an employee’s work schedule may make little difference to many workers, but make an enormous difference to a young mother with school age children.
• A supervisor’s refusal to invite an employee to lunch would normally be a petty slight, but by excluding an employee from a weekly training lunch that contributes to employee professional development as a form of retaliation, the employee might be deterred from claiming discrimination.
Likewise, these few examples cannot remotely address or provide meaningful guidance to employers for the myriad of everyday consequences of actions affecting employees in the workplace that an employee might consider materially adverse, thus, the enhanced potential for litigation.
Employer Duty to Investigate
Retaliation claims are typically very difficult to defend and they can be expected to become more complex as the courts must consider evidence as to whether the employer’s actions were “materially adverse” to a “reasonable employee.”
In order to defend such claims, the employer will have to be prepared to establish the bases for the underlying employment actions that the employee claims were retaliatory by showing that there was an objective, legitimate business reason for the decision unrelated to any prior employee complaint of discrimination. To the extent that there is any remote relationship between a prior complaint by the employee about discriminatory treatment or harassment and a subsequent employment action affecting the employee, the employer must be able to show that such later action was not “materially adverse” or severe enough that it would dissuade an employee from filing a charge about the underlying alleged discrimination. This inquiry must be fact specific into the particular circumstances (or context) in which the negative action occurred to determine its overall impact on the employee’s working relationship with the employer. Thus, when faced with a borderline employment decision that could have significant negative impact upon an employee, the employer should carefully investigate whether the employee has ever made a complaint about employment conditions, and if so, whether the employer’s current action can in any way be construed as retaliation for such prior conduct. If so, the employer must consider whether to proceed with the proposed negative action or to modify or lessen its potential impact to be materially adverse.
It can be expected that many more retaliation claims will now be filed. Careful investigation of the bases for employment decisions will reduce this liability.
Labor and the Law - August 2006 Render