Issue of the Month

July 2006, United States Supreme Court and Retaliation

Thomas P. Krukowski, Esq.
tpk@kclegal.com

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:

1. 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
   
   
2. 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.

While the Court states that Seventh Circuit decisions are consistent with its current decision, the U.S. Supreme Court went beyond prior Seventh Circuit decisions. The Court in Burlington Northern v. White held:

An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. ... ‘courts have held that personality conflicts at work that generate antipathy’ and ‘“snubbing” by supervisors and co-workers’ are not actionable under the law.
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We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. ... We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here.
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We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. ‘The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’ A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. ... A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

The injury suffered by White was specifically work-related and the Court did not have to decide the extra work-related conduct. White complained about statements made to her that she felt were sex discrimination. To paraphrase, she was told that women should not be involved in a maintenance job for a railroad. Her supervisor was suspended for 10 days without pay and was required to attend sexual harassment training. As stated earlier, after her complaint, she was assigned more difficult work within her classification (less forklift work; more physical labor). Secondly, White was suspended for 37 days for alleged insubordination (something that could happen in the context of this case).

The employer, after reviewing the matter, reinstated White and gave her the 37 days of back pay. This leave occurred over Christmas and White testified it was the worst Christmas she ever had. Bad facts make for bad cases. The Court stated that the employer’s actions were enough for it to be a serious “injury” and upheld the jury’s findings.

What should an employer do when faced with a claim of discrimination?

1. Have a clearly stated rule prohibiting retaliation. Prevent a claim of retaliation by affirmatively discussing your rule against any retaliation with anyone complaining about discrimination based on race, color, religion, sex or national origin, etc.
   
   
2. 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.
   
   
3. Get the employee to admit that he or she does not feel retaliated against and if so, explain. Are the employees feelings “objective” or “subjective”? If only “subjective,” get the employee to admit this and document it. If objective, investigate each claim and make your findings accordingly. Compare, in detail, any conflicts the employee has had prior to the alleged “protected activity,” i.e., “snubbing,” annoyances, etc.
   
   
4. 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.
   
   
5. The basis for the law against retaliation; according to this decision, is to make certain that an employee is not discouraged from making or supporting a charge of discrimination. Ask the employee if he or she is in any way dissuaded or discouraged from alleging discrimination. Affirmatively state that complaining about perceived discrimination is every employee’s right and indicate that the employer encourages the free-flow of any expression. 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.”
   

This is a developing area of litigation and requires careful consideration to details.

If you have questions concerning this decision or any other employment law issues, please contact our educational services department at (414)423-1330.