United States: Supreme Court Broadens Protection Of Employees Who Complain About Discrimination

A U.S. Supreme Court decision issued late last week, Burlington Northern & Santa Fe Railway Co. v. White, makes it easier for employees to sue and to prevail on retaliation claims under Title VII of the Civil Rights Act of 1964. The Civil Rights Act prohibits discrimination based on "race, color, religion, sex, or national origin." It also forbids retaliating against an employee or job applicant because that person "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceedings or investigation.

The question in Burlington Northern was "how harmful must . . . adverse actions be to fall within [the] scope" of the anti-retaliation provision. The case reached the Supreme Court because the lower federal courts were divided on what constituted an adverse action. Some Circuit Courts of Appeals ruled that there is no valid claim unless an employer takes an adverse action that affects the "terms, conditions, or benefits" of employment. Some ruled that there must be "an ultimate employment decision" like discharge, refusal to hire, or denial of leave before an employee can sue for retaliation. Still others ruled that an employee needs to prove only that the "employer’s challenged action would have been material to a reasonable employee."

The Supreme Court resolved these conflicting cases by adopting a very lenient standard for cases of retaliation. The Court ruled that an employee can win on a retaliation claim by showing "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." The Court’s decision to use a "reasonable employee" standard will almost certainly result in far more cases going to trial for a jury’s determination. While "petty slights, minor annoyances, and simple lack of good manners" do not constitute deterrence, "the significance of any given act of retaliation will often depend upon the particular circumstances." In addition, an employer can be found liable for "taking actions not directly related to [the employee’s] employment or by causing him harm outside the workplace."

There is more than a little irony in the Court’s decision. Its ruling grants more protection to employees who claim to be victims of retaliation than to employees who claim to be victims of discrimination based on race, color, religion, sex, or national origin. More and more claims filed with the Maine and New Hampshire Human Rights Commission, the EEOC, and in court are based on allegations of retaliation. Nationwide, nearly one in four cases filed with EEOC now involve retaliation claims, and the number has doubled in the past fifteen years. With the Supreme Court’s decision in Burlington Northern, more retaliation claims will be filed and are likely to require hearings or trials or to result in settlements more favorable to employees.

The impact of Burlington Northern will become clearer over time. But employers should take immediate steps to make sure that they are following best practices to prevent and resolve retaliation claims internally, before they get to the EEOC or court. These include:

• Make sure that the Company’s no-retaliation policy is stated clearly in the employee handbook, on employee bulletin boards, and in other communications to employees. Publicize the policy regularly.

• Train supervisors to avoid actions that are or may appear to be taken in retaliation for an employee’s protected action. Supervisors are also responsible for preventing retaliation against a complainant by co-workers, who may harass or ostracize the complainant.

• Assure an employee who files an internal or external discrimination complaint that he or she will not be subject to retaliation, and tell the employee to report to you immediately any action that he or she thinks may be retaliatory.

• Investigate any complaint of retaliation immediately and thoroughly and take appropriate remedial action.

• Avoid taking action against an employee who has filed a discrimination claim unless absolutely necessary, and then only based on objective grounds with proper documentation and after getting legal review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.