Supreme Court Hands Down Retaliation Decision

by Peter Panken

On June 22, the U.S. Supreme Court decided an employment retaliation case in which it held that any action by an employer against an employee, applicant, or even a former employee constitutes unlawful retaliation if the action would deter a reasonable employee from filing a discrimination charge against an employer.

Retaliation cases now make up 30 percent of the Equal Employment Opportunity Commission’s docket and will increase substantially as a result of this decision. Moreover, employees now will want to get their cases before juries because they hope jurors will be so mad at the employer that they’ll award compensatory and punitive damages.

The case, Burlington Northern and Santa Fe Railroad v. White, was filed under Title VII of the Civil Rights Act of 1964 and will have a significant impact on all employers. The Court unanimously affirmed a $43,500 jury award for retaliation for a female forklift operator who was transferred to a less desirable job after she sued her employer for sexual harassment.

In its decision, the Court considered two incidents of possible retaliation — the job transfer and an unpaid but later reimbursed suspension — and found that both constitute actionable retaliation under Title VII. This decision tilts the scales in favor of employees and significantly limits employer decisions.

If you haven’t trained your supervisors lately on how to avoid retaliation, now would be a good time to do it. While most supervisors know that discrimination is wrong and how to avoid it, many don’t realize that an employee can lose his discrimination claim in court but still win on his retaliation claim.

It’s vitally important that supervisors be alerted as soon as a charge is filed or a complaint aired. They should be cautioned not to take any action that could possibly be adverse against the complaining employee, and perhaps they should clear any negative action or comments to or about the complainer with your HR personnel or counsel.

Peter Panken is a member of Epstein Becker & Green’s labor and employment practice group in the firm’s New York office.