U. S. Supreme Court Expands Definition of Retaliation 07-12-2006
By Jonathan Levy, attorney at law
Sandra White was the only female in the maintenance department at a railroad. Her duties included forklift driving, removing and replacing track, cutting brush, and clearing litter and spillage. Her primary responsibility, however, was driving the forklift which was considered more prestigious and less physically challenging than the other duties. Ms. White's supervisor told her that women shouldn't be working in the maintenance department and made other inappropriate remarks to her in front of male colleagues. She complained to the company, and the supervisor was disciplined. He then removed her from forklift duty.
As a result, Ms. White filed a claim with the EEOC. Shortly thereafter, she had a disagreement with her supervisor and was suspended without pay for insubordination. After 37 days of suspension, White was reinstated to her job with back pay as the company found she had not been insubordinate. White filed a retaliation lawsuit in federal court.
For years, the federal courts have used different and conflicting standards over what is "retaliation" under federal law. Some courts held that it's illegal only if the company retaliated in making "ultimate employment decisions," like hiring, granting leave, discharging, promoting or compensating. Other courts did not limit retaliation to ultimate employment decisions.
Surprising many observers, the U. S. Supreme Court adopted a broad definition of retaliation. The Court held that retaliation includes any materially adverse action such that a reasonable employee would have been dissuaded from making or supporting a charge of discrimination. Retaliatory actions need not even be work or employment related. The Court concluded that based on this standard, White's reassignment to other job duties within her job description and suspension for 37 days without pay (even though back pay was provided) were illegal retaliation.
What this means to you: As always, be respectful when working with employees who file internal complaints. HR and/or legal should review any and all changes made to the working conditions of any employee who has a pending complaint, charge or action against the company, especially a harassment or discrimination complaint. Finally, all managers should be trained in understanding the law of discrimination and harassment.
Burlington Northern v. White (June 22, 2006)
A Good Reason Isn't Good Enough: 5 Ways to Protect Yourself from Retaliation Claims. Much retaliation is unintentional. Make sure you know how to avoid even the appearance of retaliation. On September 15th at the Santa Clara Marriott, Fair Measures is sponsoring a high-level forum for HR professionals and management on how to protect yourself from retaliation cases after this new case. Call us at 1-800-458-2778 to reserve your space.
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