Supreme Court Makes Retaliation Cases Tougher
The Supreme Court of the United States has just changed the landscape in retaliation cases and every employer needs to take note. As everyone with more than 15 employees knows, Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, firing, compensation, or other terms, conditions or privileges of employment on the basis of race, color, religion, sex, or national origin. Title VII also provides that an employer may not discriminate against an employee because he “opposed any practice made unlawful” by Title VII. Retaliation cases are dangerous because juries are made up of employees – all of whom believe that if you file a complaint at work your employer will get back at you.
The question is then, what employment actions can constitute retaliation under Title VII. Do you have to fire someone or is it enough that you changed their shift with no change in pay? The Fifth Circuit Court of Appeals (which covers Mississippi) had a pretty employer-friendly standard and only ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating could support a retaliation claim. Mattern v. Eastman Kodak Co. 104 F.3d 702, 707 (5th Cir. 1997). Federal courts in other areas of the county applied different standards. This is no longer the case.
FACTS: Sheila White is a laborer who started working for the Railroad about 3 months ago as a regular laborer (heavy, dirty work). However, she has been assigned to operate the forklift for almost the entire time. She doesn’t make more money but forklift operating is a better assignment (not as heavy or dirty). She complains that her supervisor made insulting and inappropriate remarks. The Railroad investigates and disciplines the supervisor. The Railroad tells Sheila about the results of the investigation. At the same time, the Railroad tells Sheila that other workers think it is not fair that she gets the forklift assignment given her short tenure. They assign her forklift to a “more senior man.” She goes back to her original laborer duties with no change in pay or work hours.
She files a retaliation charge with the EEOC. A few months later, Sheila gets into a spat with her new supervisor and she is suspended without pay for insubordination. She files a grievance and wins, obtaining reinstatement and full back pay. She files another retaliation EEOC charge. Sheila didn’t lose her job. In fact, she is doing the job she was hired to do. She didn’t lose any pay. Can she win her retaliation case? She can – and did – according to the jury (which awarded her almost $47,000) and ultimately the Supreme Court. In Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006), the Supreme Court addressed what constitutes retaliation and changed the law in the Fifth Circuit and most of the rest of the country. Specifically, the Court held that Title VII’s retaliation provision is broader than ultimate employment decisions and, in fact, extends “beyond the workplace-related or employment-related retaliatory acts and harm.”
So what does this mean? Clearly, employers can be held liable for retaliation that does not affect an employee’s salary; it is more than just terminations, denied promotions, or denied pay increases. How much more is not clear. The Court announced that the retaliation plaintiff “must show that a reasonable employee would have found the challenged action materially adverse which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This is an objective rather than a subjective standard – it is what a “reasonable employee” (i.e., the jury) finds retaliatory. The Court makes clear that the standard is not an effort to make actionable “those petty slights or minor annoyances that often take place at work and that all employees experience.” However, the Court says context matters, so what might not be actionable in one case may bring liability in another. Thus, changing one person’s schedule may not constitute retaliation but it might be deemed retaliatory to a young mother with school age children. Similarly, a supervisor not asking the complaining employee to lunch may not be actionable but purposefully excluding him from a weekly training lunch that contributes significantly to the employee’s professional advancement might be. It all depends on whether a reasonable employee would be deterred from complaining about discrimination. Therefore, as an employer, you should carefully evaluate any change that would affect employment – shift change, training programs, flex schedules, performance evaluations, bonus eligibility, etc. The Court has made clear that every situation is different, so it is important to get legal advice when necessary.
What does the Court mean by the statement that employers can be liable for non-workplace or employment-related actions? The Court gave as an example the FBI failing to investigate death threats against an agent and his family in violation of Bureau policy. It also offered the example of an employer filing false criminal charges against a former employee who complained about discrimination. This guidance is not much help to most employers but should send the message that you need to handle subsequent issues involving the complaining employee carefully. Make sure you follow your policies. If the complaining employee reports she is getting harassing calls at home or is being stalked, make sure you get her in touch with the police and are as helpful as possible.
Brushing off such complaints as “not at work” may land you in court.
Everyone has dealt with the problem of what to do with a current employee who has filed an EEOC charge or complained about discrimination or harassment. Upon complaining, they are in a new, protected category and you must take extra care in dealing with them. Any change to a complaining employee’s job must be carefully evaluated. Documentation must be correct. If she is being disciplined, is she the first person to be disciplined for this offense? If not, how did you handle the last person who violated the rule? If the employee is the only one being affected by the change, you need to make sure there is a legitimate reason that has nothing to do with her complaint. If the employee complains that she will not be able to continue in the job under those conditions, think carefully about it and if you are at all uncertain, consult your lawyer. This may be your opportunity to avoid a lawsuit and you should not let it pass by unnoticed.
For more information, please contact Anne R. Yuengert or Melody McAnally.
