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Where Is the Line on Retaliation after Supreme Court Rulings?

In 2006, the U.S. Supreme Court issued an opinion expanding the range of employer conduct that employees could use to support a retaliation claim. But as with anything new, questions immediately arose. Is a dirty look now considered retaliatory? An off-putting e-mail? What about a humiliating public censure?

This uncertainty left employers understandably concerned. But the Tenth U.S. Circuit Court of Appeals has since issued two opinions reminding everyone that the floodgate for new lawsuits may not be open and that there is no “general civility code” in the workplace.

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All aboard the ‘Retaliatory Discharge Express’?
Before 2006, an employee could file a retaliation claim only if his employer retaliated against him after he engaged in some sort of protected activity (such as complaining to management about unequal treatment of females) by doing something like firing him, denying him a promotion, or demoting him. More concisely, the employee had to suffer an adverse employment action after engaging in the protected conduct.

But in a landmark Supreme Court decision, the Court gave employees the go-ahead to file retaliation suits if the employer’s actions would merely “dissuade” a “reasonable employee” from “making or supporting a charge of discrimination.” For instance, if an employee feels that his boss retaliated against him by laughing at him in front of coworkers for complaining about the treatment of Mexican Americans, he could recover under retaliation laws if the employer’s conduct would cause a reasonable employee to feel dissuaded from engaging in further complaining. Burlington Northern & Santa Fe Ry. v. White.

But that determination raises a mass of questions. Who is this shadowy, mysterious “reasonable person”? When exactly will he or she feel “dissuaded”? The Court’s ruling left employers fearing the worst. Would the Burlington Northern decision become the “Retaliatory Discharge Express”?

Employee takes a ride
The effects of the Burlington Northern decision were felt in a case in which a female former employee of the New Mexico Scorpions minor league hockey team sued the Scorpions and its managers for sexual harassment. Rosann Williams said that she complained to her bosses that team managers and players were addressing her with offensive gender-specific profanity. When her bosses didn’t do anything to stop it, she took her gripes to the state labor department, filing a complaint charging the Scorpions with gender discrimination and sexual harassment.

None too pleased with Williams’ complaints, Scorpions president William Douglas Frank sat her down and politely suggested that she resign. When she refused, Frank shifted his tone and brought up nasty rumors about Williams’ alleged sexual promiscuity. He then fired her, telling her not to “fight” him because if she did, all the salacious sexual rumors would go public, ruining her marriage and devastating her family.

As it turns out, Frank didn’t make a hollow threat. When Williams filed for unemployment benefits, the Scorpions argued that she wasn’t entitled to benefits because she was fired for inappropriate sexual activity, drinking on the job, and thieving company property.

Williams sued the Scorpions and its managers for retaliation, but the team emerged victorious at trial. During the appeal, the Supreme Court issued its decision in Burlington Northern, which changed the court’s analysis.

A reenergized Williams filed her retaliation claim before the Tenth Circuit. She alleged that Frank’s threats and the Scorpions’ false accusations to the state agency after her termination were sufficiently retaliatory since a reasonable employee would be deterred from complaining about further discrimination. After all, a reasonable person would probably keep quiet about discrimination if her boss threatened to spread sexual rumors about her and fight unemployment compensation. In the end, the Tenth Circuit agreed with Williams that the Scorpions’ conduct was sufficiently adverse to support a retaliation claim. Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir., 2007).

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Professors left at the station
The Tenth Circuit has issued another opinion under the Burlington Northern framework. In that case, Oscar Somoza and Miriam Bornstein-Gomez, professors of Spanish at the University of Denver, filed a smorgasbord of claims against the university for disparate treatment, hostile work environment, and retaliation on the basis of race/national origin. The trial court dismissed their claims before trial.

Dissatisfied, the professors appealed to the Tenth Circuit. But they didn’t appeal their entire case, just the retaliation claims, arguing that the court didn’t correctly apply the Burlington Northern standard.

On appeal, the professors alleged 13 instances of retaliation against them for engaging in protected activity. For example, after they complained to university officials about hostile treatment, the professors were allegedly publicly humiliated at a departmentwide meeting when people rolled their eyes, snickered, and whispered to one another. And after they wrote to an official about harassing behavior and filed an Equal Employment Opportunity Commission (EEOC) complaint, Bornstein-Gmez was allegedly stripped of some departmental powers (such as being cut out of the teacher selection process) and cuts were made in the Spanish department. The professors argued that the university was retaliating against them for complaining by punishing them to scare them away from further complaints.

The Tenth Circuit ruled against the professors. In the end, there was no evidence that the university’s actions were substantial enough to discourage the professors from further attempting to remedy the alleged discrimination. After all, retaliatory acts were supposed to dissuade employees from complaining any further. And in this case, the professors complained more and more after each act of retaliation.

Even adding up all of their claims, the incidents of retaliation simply didn’t rise to the necessary level of “material adversity” since a reasonable employee in the professors’ position would still feel able to complain, even after everything the professors went through. Somoza v. Univ. of Denver, No. 06-1488, 2008 U.S. App. LEXIS 1170 (10th Cir., Jan. 18, 2008).

Crazy . . . but that’s how it goes
The Burlington Northern decision redefined how courts everywhere will analyze employment retaliation cases. The good news is that decisions like the Williams and Somoza cases show that the Burlington Northern ruling didn’t tweak the law to such a degree that any little employee beef is now worthy of a lawsuit.

An employee still can’t sue for a bruised ego unless he can prove that the hurtful action would “dissuade” a “reasonable employee” from engaging in further protected activity. But you must be acutely aware that any action that can be seen as doing so is now unlawful.