Builders and Contractors Exchange
Weekly Bulletin: 21 NOV 2006
lOWERING THE BAR ON EMPLOYEE RETALIATION CLAIMS
By: Heather M. Kofron
Employers have a new concern with the Supreme Court’s recent decision in Burlington Northern & Santa Fe Ry v. White, 126 S. Ct. 2405 (2006). In Burlington, the plaintiff, Sheila White (“White”), was the victim of sexual harassment and subsequent retaliation by her employer for complaining about the sexual harassment. Burlington, White’s employer, claimed that White had not stated a claim for retaliation because she had not suffered an ultimate employment action (i.e., demotion or termination). Rather, because Burlington only suspended White without pay and changed her duties to less desirable duties, Burlington contended that it did not retaliate against White.
In its decision, the Supreme Court rejected any requirement that an employee suffer an ultimate employment action to state a claim of retaliation and clarified the standard for determining employee retaliation claims. Previously, Virginia employed a more employer friendly standard, which made it more difficult for employees to state retaliation claims. The Supreme Court further determined that the anti-retaliation provision of Title VII is broader than the anti-discrimination provision of Title VII. As a consequence, employer retaliation can occur by taking action not directly related to employment or causing the employee harm outside of employment. An example of such employer retaliation could include filing criminal charges against an employee for a complaint of discrimination. However, trivial actions taken against employees are not actionable. An employee must show that the action taken against him or her is “materially adverse,” which means, “it might well have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
For White, the Supreme Court determined that Burlington’s reassignment of her job duties and suspension without pay was retaliatory. For employers, the courts will now grapple with employing the Supreme Court’s new standard. The significance of any particular act of retaliation will often depend on the circumstances and as the Supreme Court stated, “context matters.” As a consequence, the Supreme Court’s decision opens the door to more employee retaliation claims and employers will likely encounter more difficulty in obtaining dismissal of retaliation claims before trial.
Questions?
If you have any questions about this article or any other related matters, please contact:
Heather M. Kofron
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.