Once, the law counted only extreme job sanctions, like termination, as retaliation. Now the definition is far broader. What you … and your managers … need to know.
The Burlington Northern & Santa Fe Railroad was involved in a train wreck recently. No, not the physical kind, the legal kind.
In a unanimous 9-0 decision, the U.S. Supreme Court slammed the railroad for retaliating against an employee for filing a sexual harassment complaint with the Equal Employment Opportunities Commission. The retaliatory acts included a 37-day suspension without pay (later rescinded) and reassignment to a more taxing job within the employee’s job category of track worker. Whereas Sheila White had formerly driven a forklift, now she had to work with heavy iron rails by hand.
What makes this case important to all employers is that, previous to the Burlington Northern case, retaliation was pretty much defined by federal authorities as extreme job sanctions, such as a pay cut, assignment to a totally different job category, or termination. (Some states have a broader definition.)
Now, said Justice Stephen Breyer, retaliation is virtually any “materially adverse” action that might dissuade an employee, or even an applicant, from filing a discrimination complaint. Wrote Justice Breyer: “A supervisor’s refusal to invite an employee to lunch is normally trivial … but … excluding an employee from a weekly training lunch that contributes significantly to professional advancement might well deter … complaining about discrimination.” From termination or pay cut to exclusion from a training lunch. If that’s not broadening the standard, what is?
The definition now also extends to materially adverse actions beyond the employment arena, such as an employer urging a landlord not to rent to the worker. Although this venue is clearly outside the workplace, the act is still retaliation.
Attorney Allison West, founder of Employment Practices Specialists, LLC, of Pacifica, California, briefed attendees at a recent SHRM conference on these issues. West first listed those actions protected from retaliatory measures. The list included complaining or threatening to complain to outside authorities, or even to management, about any action the employee reasonably believes is illegal, and taking part in an investigation of a possibly discriminatory action. But it also included simply asking for a reasonable accommodation for a disability or for religious reasons.
Retaliation is Wrong, Even If You’re Right
More important, the action complained about didn’t have to actually be illegal. The employee only had to reasonably believe it was. In other words, you, the employer, could be in the right about the original action. But if you retaliate, you’re in the wrong.
Actions that meet the standard of retaliation include:
–Refusal to hire
–Denial of benefits or promotion
–Demotion and suspension
–Threats and reprimands
–Negative job references
But they now also include things like:
–Loading on extra work
–Conducting extra scrutiny in response to the complaint
Negative evaluations or changes in work responsibility are not usually considered retaliation, but they can be, says West, when “viewed in the totality of circumstances” and when using an “objective, reasonable employee standard.”
Things to Watch Out For
The key thing, says West, is to make sure all contributors to any adverse employment decision acted for “legitimate, nondiscriminatory reasons.” And be proactive in your defensive measures.
If any adverse action has to be taken against an employee who has complained of discrimination:
–Think about timing. Adverse actions taken close to the complaint might be viewed as retaliation, even though they aren’t.
–Investigate all claims of discrimination and document, document, document!
–Look carefully at pretermination job performance. A string of glowing evaluations followed by a sudden firing can be lethal for employers.
–Be especially cautious if the person making the adverse employment decision is also the subject of the complaint.
–Have a second level of review of any adverse action
Taking such steps, says West, will help “break the link” that makes it look like the adverse action was retaliation for the discrimination claim. And as Burlington Northern probably now knows, they might just keep your business on track.
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