Employment Law Communiqué
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Supreme Court Decides Important Retaliation Case Supreme Court Decides Important Retaliation CaseOn June 22, 2006, the United States Supreme Court decided the case of Burlington Northern Santa Fe Railway Co. v. White, and set a nationwide standard as to what constitutes an "adverse action" with respect to retaliation claims. The lower courts had been divided as to how to define "adverse action" with respect to a retaliation claim in the employment context. Title VII forbids an employer from retaliating against an employee because he or she has opposed a discriminatory practice. For example, Title VII clearly forbids an employer from firing an employee for filing a discrimination claim with the EEOC. However, what if an employer did something outside of the workplace to retaliate against an employee? For example, in one case, the employer filed false criminal charges against an employee who had complained about discrimination. Some lower courts would have held that because it was outside of the employment arena, it was not actionable retaliation. In other courts, this type of behavior could constitute actionable retaliation because it was meant to discourage the employee from making a charge of discrimination with the EEOC. Because of this division of opinion in the lower courts, the Supreme Court decided to set the appropriate standard for all lower courts to follow. Facts In this case, the sole female employee at a facility claimed she was retaliated against for complaining to company officials that her supervisor made inappropriate comments to her. The plaintiff in this case, Sheila White, began her employment at Burlington Northern as a "track laborer." She was hired by the "Roadmaster." As a track laborer, she was to remove and replace track components, cut brush, clear litter, and other job duties pursuant to her job description. White had previous experience as a forklift operator. Because of her previous experience, shortly after she was hired, while her title remained track laborer, White's primary job duty was to operate the forklift. Three months into her employment, White complained to company officials that her supervisor repeatedly told her that women should not be working in her department. In addition, her supervisor also made insulting and inappropriate remarks to her in front of other male employees. Shortly thereafter, the Roadmaster reassigned White to general track laborer duties. He explained that other co-workers complained that a more senior man should have the less arduous and cleaner job of forklift operator. As a result of her reassignment, White filed a complaint with the EEOC alleging that taking away her forklift duties amounted to unlawful retaliation for filing the complaint about her supervisor. A few days later, White had an altercation with her new supervisor. White's new supervisor informed the Roadmaster that White was being insubordinate and the Roadmaster immediately suspended White without pay. As she was part of a union, White invoked grievance proceedings and was eventually awarded back pay for the time she was suspended. A jury awarded White $43,500 in compensatory damages. The Sixth Circuit Court of Appeals upheld the jury award, but it disagreed as to what standard should have been applied in determining whether or not White suffered an "adverse action." The Supreme Court granted certiorari to decide the split in the lower circuit courts regarding what adverse action standard should be used in retaliation claims. Supreme Court's Decision and Reasoning The first question the Supreme Court addressed was whether or not "adverse action" had to have something to do with the employee's job. There generally is no dispute that if the allegedly retaliatory action affected the employee's job duties, salary, benefits, ability to be hired, fired, or promoted, it could be considered actionable retaliation if proved. The question that remained, however, was whether or not "adverse action" also encompassed actions that occurred outside of the workplace that did not arguably affect the terms and conditions of the employee's work environment. The Supreme Court primarily delved into Congress' choice of words used in Title VII's "discrimination" language and Title VII's "retaliation" language and found that because Title VII's retaliation language is far broader than the discrimination language, the retaliation language naturally encompasses employer actions beyond the terms, conditions, or privileges of employment. To decide otherwise would not deter the many forms of adverse actions that an employer could take in retaliation against an employee who opposes a discriminatory action. Thus, the Supreme Court held that an employer's actions that did not affect the terms, conditions, or privileges of employment could still be actionable as retaliation in violation of Title VII. Given that the retaliation language encompasses employer actions outside of the workplace, the Supreme Court thought it needed to "define" a standard to address those types of retaliation claims. The Supreme Court defined the standard to be "objectively reasonable," i.e., if the adverse action would discourage a reasonable employee from making or supporting a charge of discrimination. While the Supreme Court did not define the standard in more specific terms, it did state what the standard does not encompass. The standard does not encompass petty slights, minor annoyances and simple lack of good manners, because Title VII is not a general civility code for the American workplace. The Supreme Court would not provide any additional specifics as to what actions could constitute an objectively reasonable adverse action, because the same act in two different contexts could be materially adverse in one situation and not in the other situation. With respect to White's claim against Burlington Northern, the Supreme Court held that there was a sufficient basis to support the jury's verdict on her retaliation claim and upheld the verdict. Impact on Employers This decision will have an impact on employers and on future retaliation litigation. Because the Burlington Northern case expanded the definition of what could constitute an adverse action, it is likely there will be an increase in the number of retaliation claims filed. To minimize potential liability, employers should retrain and remind supervisors and managers to not retaliate against any employee who makes a complaint of discrimination in any way - either inside or outside of the work environment. Handbook Update Alert The Indiana legislature recently passed a juror job protection provision into law. This law became effective on July 1, 2006. If an employee is called for jury service and the employee informs his or her employer of the jury summons prior to the employee appearing for the jury service, the employer may not subject the employee to any adverse employment action because of the jury service. For example, if the employee serves on a jury for three weeks, while this absence may disrupt the employer's business, the employer is not allowed to terminate the employee for the employee's absenteeism due to the jury service or subject the employee to any type of disciplinary action because of the jury service. In addition, employers may not require or even request the employee use paid time off due to jury service. Employers should review their employment practices and employee handbooks to ensure that they are in compliance with this new law. If you have any questions or need assistance in revising your policies to reflect these recent changes in the law, please contact Mallor Clendening Grodner & Bohrer LLP’s Labor and Employment Practice Group. 812-336-0200 www.mcgb.com |
