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On June 22, 2006, the U.S. Supreme Court decided Burlington Northern v. White, a decision which should result in more retaliation lawsuits.
The Court extended its interpretation of Title VII which may add to the confusion of when retaliation is actionable. The Court held that the retaliation statute:
- Extends to employer responses to employee discrimination complaints concerning matters not limited to work-related subjects, including actions or “harms” occurring away from work; and
- Reduces the extent of harm or injury an employee must endure in order to win a lawsuit for a violation of Title VII and retaliation specifically.
Webster’s Dictionary defines retaliation as “to repay (as an injury) in kind: to return like for like: to get revenge.” It is very common for an individual to be a bit paranoid when challenging an employer’s policy, a supervisor’s behavior or even a co-employee’s conduct. In this context, the employee can become overly sensitized and even unreasonably defensive. Further, as in many cases, an employer could be innocent of any underlying discrimination and still be found to have violated the retaliation provision of Title VII. This is what happened in Burlington Northern v. White. A forklift operator, Sheila White, complained of sexual harassment. Shortly after that, White was transferred to a more physically demanding job which included removing and replacing railroad track components, cutting brush and clearing litter. White filed a claim with the EEOC alleging unlawful gender discrimination based on the reassignment of her duties as a result of her complaints. A few days later, White and her supervisor had a disagreement and he accused her of being insubordinate. She was immediately suspended without pay for 37 days. White’s claim of sex discrimination was dismissed as unfounded, but her claim that Burlington Northern retaliated against her was upheld and $46,000 in compensatory damages and $3,250 in medical expenses were awarded. The Court’s reasoning makes a finding of summary judgment more difficult for an employer and, more often, makes the case for a jury to decide.
What should an employer do when faced with a claim of discrimination?
- Have a clearly stated rule prohibiting retaliation and discuss your rule with anyone complaining about discrimination.
- Review all potential changes in hours, terms or conditions of employment and non-employment related conduct before any action is taken against an employee who has made a discrimination claim.
- Get the employee to admit that he or she does not feel retaliated against and if so, explain.
- If an employee complains about discrimination, and if disciplinary action is taken for unrelated and future infractions of any policies, review the “seven questions” to make sure you have secured the employee’s admission to the facts about the “misconduct” and document everything.
- Ask the employee if he or she is in any way dissuaded or discouraged from alleging discrimination. Review your open-door policy, complaint procedure and any other mechanism you employ to make sure each person has a freedom to speak without fear of negative responses or “retaliation.”
For more information on this case, see our July 2006 Issue of the Month.
For more information regarding discrimination and retaliation call our educational services department at (414) 423-1330 or e-mail kam@kclegal.com.
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