U.S. SUPREME COURT EXPANDS THE DEFINITION OF
"RETALIATION"
UNDER TITLE VII
As a general rule, an employer may not retaliate in any
way against an employee who opposed a discriminatory practice, made an
employment discrimination charge or participated in an investigation.
Claims of retaliation by employees and former employees have become the
fastest growing area of employment litigation in recent years. Last
month, in Burlington Northern & Santa Fe Railway Co. v. White, the U.S.
Supreme Court expanded anti-retaliation protections to bar a retaliatory
act short of termination, a change in job status or pay, if it
materially injures or harms an employee who has complained of
discrimination and would dissuade a reasonable worker from making or
supporting a charge of discrimination.
The case involved a female employee who was assigned to less desirable
duties within the same job title and who was later suspended without pay
for insubordination, although the her suspension was later overturned
and back pay granted. Although neither act involved an ultimate
employment decision, such as demotion or termination, the Court held
both actions constituted retaliation under Title VII of the 1964 Civil
Rights Act, which bars discrimination on the basis of sex, race, color,
national origin or religion. For purposes of the court's review, the
employer was not disputing that its acts were in retaliation for the
employee's complaints.
The Court also concluded that protections against "retaliation" are
broader than protections against "discrimination," which require that an
employee suffered an adverse action affecting employment or working
conditions. According to the Supreme Court, unlawful retaliation could
arise from retaliatory acts not related to employment, such as filing
false criminal charges against an employee. The Supreme Court would
still require that a retaliatory act must be significant before an
employer would be liable, stating that Title VII does not immunize
employees from “petty slights or minor annoyances.”
Our recommendation:
-
Keep in mind that any retaliatory act against an employee
who has made any employment discrimination complaint or has participated
in any investigation could create additional liability for retaliation
under Title VII.
-
Take great care in assigning more difficult tasks under
the same job title to an individual who has complained of employment
discrimination. Even with a substantial business justification, you
could have a jury deciding whether the act was retaliatory.
-
Investigate any complaint of retaliation like you would a
complaint of sex harassment and respond to any valid complaints.
-
Include an anti-retaliation policy with your
non-discrimination and complaint procedures.
If you have any questions, please contact us.
