Triggering the Retaliation Bullet - Is A Uniform Standard on the Horizon?

Published on: 4/14/2006

April 14, 2006 

As many employers have painfully learned, it is often easier for an employee to demonstrate retaliation than discrimination when both claims are made arising out of the same conduct. There are many variations of the factual pattern in which an employee or former employee charges an employer with unlawful discrimination on the basis of age, race, sex or other protected areas but is ultimately unsuccessful in establishing such discrimination. Yet, the employee is often able to prove that they were the victim of retaliatory action by the employer because they brought the charge of discrimination.

Increasingly, courts have also been subjected to claims of de minimis retaliatory conduct. In sorting through these claims, federal courts and the EEOC have interpreted the phrase "adverse employment action" in different ways. Now, in a case pending before the United States Supreme Court, the court will have an opportunity to interpret this phrase and to settle the debate among the various circuits as to the meaning of this term. By doing so, the court has the opportunity to put an imprimatur on the law of retaliation that is likely to impact claims for retaliatory conduct under many federal statutes, including Title VII.

First, let's begin with a little background information. Title VII of the Civil Rights Act of 1964 outlawed retaliatory conduct. In the language of Title VII, this means that an employer can not discriminate against an employee because he or she "opposed an unlawful employment practice," or because he or she "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. Courts have agreed that discrimination must involve some adverse employment action against an employee. What they have not agreed about is what constitutes an adverse employment action. The dispute now pending before the United States Supreme Court, Burlington Northern and Santa Fe Railway Co. v. White, U.S., No. 05-259 (December 5, 2005) appears likely to resolve some of this conflict.

The underlying case comes to the court with a fairly common factual background. The plaintiff, Sheila White, worked for Burlington Northern as a forklift operator. During the course of her employment, she made an internal complaint of sexual harassment. Following this complaint, she was reassigned to a job that involved repairing damaged trucks. However, her reassignment did not result in any reduction of pay or benefits. Nonetheless, she filed an EEOC charge of sexual discrimination and retaliation and in it contended that her reassignment constituted retaliatory discrimination.

Approximately eight weeks later, Ms. White filed a second EEOC charge in which she alleged that there had been further retaliatory conduct against her. Three days after receiving the second charge, Burlington Northern suspended White without pay based on alleged insubordinate conduct. Ms. White protested her suspension through the company's grievance procedure and was reinstated with thirty-seven days of full back pay.

When the matter made it to federal court, Burlington Northern asserted that there were legitimate non-discriminatory reasons for every action it took against Ms. White. Burlington Northern asserted that Ms. White's reinstatement with back pay following her suspension was not sufficient to constitute an adverse employment action, but the Sixth Circuit Court of Appeals disagreed. The court pointed out that reinstatement with back pay did not make Ms. White whole because she could still be awarded interest on the back pay, attorneys' fees, and compensatory and punitive damages under Title VII. The Circuit Court of Appeals went on to assert that the suspension followed by back pay was more than a trivial complaint that would not normally trigger a claim of retaliatory conduct.

Burlington Northern appealed to the Supreme Court which awarded it an appeal in late 2005. Burlington Northern has asserted that the Sixth Circuit's standard makes proof of retaliatory conduct too simple and would only result in flooding the courts with retaliation claims. Burlington Northern has also asserted that there is a conflict among the Circuit Courts of Appeals as to what constitutes an adverse employment action and the Supreme Court needs to resolve this conflict.

Several Circuit Courts of appeal have adopted an approach suggested by the EEOC. That approach construes retaliatory discrimination to be "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity." Other courts of appeal have imposed a more stringent standard by requiring retaliatory conduct to involve an adverse employment action that is an ultimate employment decision, such as discharge, demotion, or suspension. Finally, at least four circuits, including the Sixth Circuit, require a materially adverse change in the terms and conditions of employment.

Burlington Northern has argued in its petition for Supreme Court review that the "ultimate employment decision" standard is consistent with prior Supreme Court cases. Burlington Northern further asserts that the Sixth Circuit misapplied that standard in the present case.

Burlington Northern adds that the confusion concerning the standard for Title VII retaliation has spawned disarray in other federal statutes that contain similar anti-retaliation provisions. Burlington Northern asserts that Title VII liability should not be extended to trivial actions, such as reassigning employees to duties that are less appealing. Finally, Burlington Northern argues that employers should have the latitude to allow line management to discipline employees immediately for insubordination or other types of misconduct and should not be subjected to unwarranted litigation risks because of such actions.

This case is currently on the Supreme Court's docket for argument in April 2006. A decision is expected this summer.

 




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