Retaliation: An Expanding Minefield
Retaliation has been much in the news recently as businesses across the U.S. struggle to understand the effect of last June’s unanimous decision by the U.S. Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White.
The case arose when rail yard worker Sheila White sued Burlington Northern claiming that the company had acted against her after she complained that a supervisor had harassed her. Among the harms she said she suffered was a 37-day suspension without pay after a dispute with another employee. She was later reinstated and given back pay. White also alleged that her job as a forklift driver was given to a senior employee.
The justices agreed that she had been a victim of retaliation. The Court said that employees “must show that a reasonable employee would have found the challenged action materially adverse” ( Burlington, 2006).
That means that the alleged payback (or adverse employment action) does not have to have severe consequences, such as the loss of a job or wages. The revenge only has to be such that a reasonable person would have been deterred from reporting wrongdoing had he or she known in advance what form the retaliation would take (Maslanka, 2006; Weitzman & Magier, 2006). It is a greatly expanded definition of retaliation (“High Court,” 2006; Thompson, 2006).
Some commentators warn that, as a result of Burlington, corporations could face more lawsuits for retaliation (Maslanka, 2006). That would be particularly bad news in light of the fact that U.S. companies are already facing an increasing number of retaliation claims (Starr, 2006). In the 2004 fiscal year alone, the U.S. Equal Employment Opportunity Commission received 22,740 charges of retaliation discrimination based on all statutes the agency enforces. The agency recovered more than $90 million in monetary benefits from the 24,751 retaliation charges it resolved in 2004 (U.S. EEOC, 2005). To put that in perspective, 15.3% of the charges filed with the EEOC in 1992 were for retaliation. That has grown almost every year since, reaching a high of 29.5% in 2005 (Starr, 2006; U.S. EEOC, 2006).
Burlington was filed under the sexual harassment section of Title VII, but employers could also face retaliation suits under other state and federal laws that have anti-retaliation clauses, such as the Fair Labor Standards Act, the Family Medical Leave Act and the Age Discrimination in Employment Act. Because Title VII cases are often the bedrock on which others are decided, it is likely, observers say, that the new definition will be applied in those cases, too (Gottsegen, 2006).
That new definition has been expanded in other ways as well. The Court did not limit the worker to suing for revenge that is felt only in the workplace. The employer may also be liable for payback that reverberates outside the job site – for example, a working mother who is harmed by a change in working hours because it affects child care (Gottsegen, 2006; “High Court,” 2006; Thompson, 2006). Other successful claims might include charges that the retaliation took the form of lower pay or of a transfer to a job with less-desirable duties (Thompson, 2006).
But all is not gloom for employers. To win, the employee must show that the retaliation caused “injury or harm” (Burlington, 2006; Starr, 2006, p. 3). Claims that will likely not be successful include the trivial, everyday pettiness common at most jobs (Weitzman & Magier, 2006). And, such things as changes in one’s job may not be actionable (Weitzman & Magier, 2006). It will depend on the facts of the individual case (Thompson, 2006).
What’s an organization to do?
Following are some of the most straightforward approaches: Change employee manuals to include the new definition of retaliation; educate managers so they understand the new limitations; tell managers they must refrain from acting emotionally if confronted with discrimination claims; encourage managers to work with HR each step of the way when problems crop up; and document, document, document the reasons for any action concerning an employee who has filed a complaint (Gottsegen, 2006; Maslanka, 2006; Thompson, 2006; Weitzman & Magier, 2006).
The more proactive approach, of course, is to create work environments in which employees don’t have good reason to file complaints in the first place. By minimizing complaints, employers minimize allegations of revenge. In other words, a well-run workplace is the best way of avoiding the expanding legal minefield of retaliation charges.
Documents used in the preparation of this TrendWatcher include the following:
Burlington Northern and Santa Fe Railway Co. v. White.126 S. Ct. 2405 [www.caselaw.findlaw.com]. June 22, 2006.
Gottsegen, Becky. “United States Supreme Court Delivers Double-Whammy for Employers: Retaliation and Discrimination Just Got Easier to Prove.” E*Zines [www.joneswalker.com]. September 2006.
“High Court Takes Broad View of Retaliation.” The Employment Law Authority, August/September 2006, pp. 1, 6-7.
Maslanka, Michael P. “Post-Burlington Northern Employment Procedures.” Texas Lawyer, September 4, 2006.
Starr, Michael. “Retaliation Reinvigorated.” Laborand Employment Law Update, September 8, 2006, pp. 1-4.
Thompson, Teresa. “The United States Supreme Court Defines Retaliation and Expands Employee Rights.” Fredrikson & Byron [www.fredlaw.com]. September 2006.
U.S. Equal Employment Opportunity Commission. “Charge Statistics: FY 1992 Through FY 2005.” January 27, 2006.
U.S. Equal Employment Opportunity Commission. “Retaliation.” July 19, 2005.
Weitzman, Allan H. and Heather G. Magier. “The Dark Clouds of Burlington Northern: Is There a Silver Lining?” HR Advisor, September/October 2006, pp. 5-9.
The case arose when rail yard worker Sheila White sued Burlington Northern claiming that the company had acted against her after she complained that a supervisor had harassed her. Among the harms she said she suffered was a 37-day suspension without pay after a dispute with another employee. She was later reinstated and given back pay. White also alleged that her job as a forklift driver was given to a senior employee.
The justices agreed that she had been a victim of retaliation. The Court said that employees “must show that a reasonable employee would have found the challenged action materially adverse” ( Burlington, 2006).
That means that the alleged payback (or adverse employment action) does not have to have severe consequences, such as the loss of a job or wages. The revenge only has to be such that a reasonable person would have been deterred from reporting wrongdoing had he or she known in advance what form the retaliation would take (Maslanka, 2006; Weitzman & Magier, 2006). It is a greatly expanded definition of retaliation (“High Court,” 2006; Thompson, 2006).
Some commentators warn that, as a result of Burlington, corporations could face more lawsuits for retaliation (Maslanka, 2006). That would be particularly bad news in light of the fact that U.S. companies are already facing an increasing number of retaliation claims (Starr, 2006). In the 2004 fiscal year alone, the U.S. Equal Employment Opportunity Commission received 22,740 charges of retaliation discrimination based on all statutes the agency enforces. The agency recovered more than $90 million in monetary benefits from the 24,751 retaliation charges it resolved in 2004 (U.S. EEOC, 2005). To put that in perspective, 15.3% of the charges filed with the EEOC in 1992 were for retaliation. That has grown almost every year since, reaching a high of 29.5% in 2005 (Starr, 2006; U.S. EEOC, 2006).
Burlington was filed under the sexual harassment section of Title VII, but employers could also face retaliation suits under other state and federal laws that have anti-retaliation clauses, such as the Fair Labor Standards Act, the Family Medical Leave Act and the Age Discrimination in Employment Act. Because Title VII cases are often the bedrock on which others are decided, it is likely, observers say, that the new definition will be applied in those cases, too (Gottsegen, 2006).
That new definition has been expanded in other ways as well. The Court did not limit the worker to suing for revenge that is felt only in the workplace. The employer may also be liable for payback that reverberates outside the job site – for example, a working mother who is harmed by a change in working hours because it affects child care (Gottsegen, 2006; “High Court,” 2006; Thompson, 2006). Other successful claims might include charges that the retaliation took the form of lower pay or of a transfer to a job with less-desirable duties (Thompson, 2006).
But all is not gloom for employers. To win, the employee must show that the retaliation caused “injury or harm” (Burlington, 2006; Starr, 2006, p. 3). Claims that will likely not be successful include the trivial, everyday pettiness common at most jobs (Weitzman & Magier, 2006). And, such things as changes in one’s job may not be actionable (Weitzman & Magier, 2006). It will depend on the facts of the individual case (Thompson, 2006).
What’s an organization to do?
Following are some of the most straightforward approaches: Change employee manuals to include the new definition of retaliation; educate managers so they understand the new limitations; tell managers they must refrain from acting emotionally if confronted with discrimination claims; encourage managers to work with HR each step of the way when problems crop up; and document, document, document the reasons for any action concerning an employee who has filed a complaint (Gottsegen, 2006; Maslanka, 2006; Thompson, 2006; Weitzman & Magier, 2006).
The more proactive approach, of course, is to create work environments in which employees don’t have good reason to file complaints in the first place. By minimizing complaints, employers minimize allegations of revenge. In other words, a well-run workplace is the best way of avoiding the expanding legal minefield of retaliation charges.
Documents used in the preparation of this TrendWatcher include the following:
Burlington Northern and Santa Fe Railway Co. v. White.126 S. Ct. 2405 [www.caselaw.findlaw.com]. June 22, 2006.
Gottsegen, Becky. “United States Supreme Court Delivers Double-Whammy for Employers: Retaliation and Discrimination Just Got Easier to Prove.” E*Zines [www.joneswalker.com]. September 2006.
“High Court Takes Broad View of Retaliation.” The Employment Law Authority, August/September 2006, pp. 1, 6-7.
Maslanka, Michael P. “Post-Burlington Northern Employment Procedures.” Texas Lawyer, September 4, 2006.
Starr, Michael. “Retaliation Reinvigorated.” Laborand Employment Law Update, September 8, 2006, pp. 1-4.
Thompson, Teresa. “The United States Supreme Court Defines Retaliation and Expands Employee Rights.” Fredrikson & Byron [www.fredlaw.com]. September 2006.
U.S. Equal Employment Opportunity Commission. “Charge Statistics: FY 1992 Through FY 2005.” January 27, 2006.
U.S. Equal Employment Opportunity Commission. “Retaliation.” July 19, 2005.
Weitzman, Allan H. and Heather G. Magier. “The Dark Clouds of Burlington Northern: Is There a Silver Lining?” HR Advisor, September/October 2006, pp. 5-9.