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Companies brace for more retaliation claims

A recent U.S. Supreme Court decision strengthened Title VII protections for employees who have suffered retaliation by their employers.

The ruling in Burlington Northern and Santa Fe Railway Co. v. White (No. 05-259) resolved differences among the circuits as to how serious an adverse employment action has to be before an employee can sue for retaliation.

The court ruled unanimously that a railroad company retaliated against an employee who complained of sexual harassment by reassigning her to a more arduous job and suspending her for 37 days without pay – even though she was ultimately reinstated with full back pay.

Whether a plaintiff can sue for retaliation “depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position,'” Justice Stephen Breyer wrote for the court.

Employment lawyers said the decision was a clear win for employees.

It’s an “across-the-board win for the plaintiff,” said Kevin K. Russell of Goldstein & Howe in Washington, D.C., a civil rights attorney who filed an amicus brief on behalf of the National Women’s Law Center. “Had [the defendant] prevailed, it would have really curtailed employees’ rights under Title VII.”

But Ann Elizabeth Reesman of McGuinness, Norris & Williams in Washington, D.C., who filed an amicus brief on behalf of the Equal Employment Advisory Council, complained that the decision will increase litigation against employers.

“I didn’t think the court would set the threshold that low,” she said. “It’s absolutely going to generate litigation. The decision will make many employees believe all they’ve got to do now is file a complaint and they’re Teflon.”

Forklift operator

The case involved a dispute between Sheila White, a Memphis, Tenn. railroad worker, and her employer, Burlington Northern & Santa Fe Railway Co.

White, the only woman in her division, filed two discrimination charges with the EEOC, alleging that she was the victim of sex discrimination and retaliation by her co-workers and immediate supervisor.

After her second charge, she was suspended without pay, although she was reinstated 37 days later and received full back pay.

She then sued in federal court, where a jury ruled in favor of the employer on the sex discrimination charge, but awarded her $43,500 in compensatory damages on her retaliation claim.

The railroad appealed, arguing the plaintiff did not have a valid retaliation claim because she did not suffer a materially adverse job change.

The en banc Sixth Circuit ruled the plaintiff’s 37-day suspension was an adverse employment action, even though she subsequently received full back pay.

The Supreme Court unanimously agreed.

“The anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace,” Breyer wrote. “We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

Further, “[a] provision limited to employment-related actions would not deter the many forms that effective retaliation can take. … [T]he anti-retaliation provision … is not limited to discriminatory actions that affect the terms and conditions of employment.”

The court rejected the railroad’s argument that its reinstatement and full back pay following barred any Title VII remedies.

Case-specific standard

Lawyers who represent employers and business organizations criticized the decision for failing to provide a clear guide to the limits of retaliatory action by employers.

The court found that “the significance of any act of retaliation will often depend upon the particular circumstances. Context matters.”

For example, Breyer wrote that a changed work schedule may have a significantly different impact on a young mother with school-age children than it would on other workers.

A plaintiff claiming retaliation “must show that a reasonable employee would have found the challenged action materially adverse,” the judge wrote.

Allan H. Weitzman, who practices with Proskauer Rose in Boca Raton, Fla., said litigation against employers is likely to increase because the court failed to create a “single, unified standard for discriminatory retaliation.”

Weitzman, who represented the Society for Human Resource Management and the National Federation of Independent Business Legal Foundation as amici, said the court’s “reasonable employee” standard will be problematic for employers.

“Once you’re talking about a ‘reasonable person’ standard, you’re talking jury trials,” Weitzman said.

Stephen Bokat, senior vice president and general counsel for the U.S. Chamber of Commerce, agreed that the “reasonable person” standard would increase the likelihood employees will sue for perceived discriminatory retaliation.

“I do think there will be more charges filed,” he said. “Will they be successful? Probably.”

Weitzman said he preferred the language in a concurring opinion by Justice Alito, who wrote that that discriminatory retaliation should be limited to “compensation, terms, conditions, or privileges of employment.”

Aaron Maduff, of Maduff, Medina & Maduff in Chicago, who represents employees, said he expects lawsuits to increase in the 5th and 8th Circuits, where “there was practically an invitation to middle managers to retaliate, so people weren’t reporting anything.”

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