Special from Atlanta—SHRM Annual Conference and Exhibition
Retaliation means the employer is paying stupid money for stupid acts, says attorney Dana Cotham. Unfortunately, it doesn’t take much these days to rise to the level of retaliation.
Here’s what happened with retaliation as the result of a 2006 Supreme Court decision, says Cotham:
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BEFORE 2006 |
AFTER 2006 |
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An employee had to suffer an adverse employment action in response to having taken a protected action like registering a complaint |
An employee must merely suffer something that would dissuade a "reasonable employee” from taking the protected action |
The Landmark United States Supreme Court Case
This change in the rules of retaliation was the result of a landmark Supreme Court case, Burlington Northern and Santa Fe Railway Co v. White 126 S. CT. 2405 (2006), says Cotham. Here’s her outline of the famous case:
- Ms. White (female employee) drove a forklift for the railroad company.
- She complained that her foreman/supervisor sexually harassed her.
- Burlington (the company) investigated her complaint.
- The supervisor was suspended for 10 days and required to attend training.
- Burlington transferred White to a “new” position repairing railroad tracks, a “worse” and much more physically demanding position.
- After her transfer, she filed a charge with the EEOC alleging two complaints of retaliation related to her transfer and alleged subjection to surveillance and monitoring.
- Shortly afterwards, Burlington suspended her without pay for 37 days. (Why? “Because they are idiots,” says Cotham.)
- White’s suspension ended when Burlington reinstated her with back pay as the result of a union grievance she filed.
- She filed an additional EEOC charge related to the suspension.
- A federal jury in Tennessee awarded her $43,500.00 in compensatory damages based on her retaliation claim. The company appealed. (They were at the Dollar Store, says Cotham. Why did they appeal? See Number 7.)
- The award was initially reversed on appeal but then later reinstated by a panel of the United States Court of Appeals for the Sixth Circuit.
- Burlington appealed to the United States Supreme Court.
There Burlington argued: The behavior at issue did not “materially” change White’s terms and conditions of employment and should not be considered retaliation. For example, they said, White’s wages didn’t change.
White argued: A lower standard should be adopted under which any negative action is enough to bring a claim.
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So who had the more convincing argument?
Apparently, Ms. White did.
The Court concluded that retaliation provisions provide broader protections for victims of retaliation than they do for victims of harassment or discrimination, who must demonstrate impact on the terms, conditions, or privileges of employment.
The Court found that retaliation occurs regardless of its impact on employment if the conduct was “materially adverse,” meaning it “might have ‘dissuaded a reasonable worker from making or supporting charges of discrimination.’”
Example from Cotham
Can Ethan Employee recover under a retaliation claim if he feels Stanley Supervisor retaliated against him when Stanley changed his shift and days off because Ethan testified on behalf of an employee who filed an EEOC complaint against the company?
Answer: Ethan could recover under retaliation laws if the employer’s conduct would cause a reasonable employee to feel dissuaded from engaging in further complaining.
Most Common Retaliation Claims
The most common retaliation claims involve employees who allege the employer first harassed or discriminated against them and later punished them for filing a complaint with the employer or a relevant federal agency.
Employers are prohibited from punishing employees for exercising other rights assured to them.
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State & Federal Prohibitions
The protection against retaliation goes beyond Title VII, says Cotham. Employers are also prohibited from retaliate against an employee under the EPA, GINA, and ADEA, nor for applying for leave under the FMLA, nor for asking for a reasonable accommodation under the ADA/ADAAA.
Similar retaliation provisions are also contained in the FLSA and the OSHA regulations.
In general, an employer may NOT retaliate against an employee who opposes an illegal employment practice, or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.
Conduct that impacts an employee either inside or outside of work can be sufficient to support a retaliation claim so long as it would discourage (i.e., dissuade) employees from speaking up.
It’s important to note that there is no requirement that whatever the employee complained about in the first place was actually illegal. The complaint can actually lack merit, says Cotham. The employee’s claim does not have to hold up in court.
In tomorrow’s Advisor, red flags for retaliation plus an introduction to TrainingToday, the new comprehensive training system from BLR.
Love the definition of retaliation in the first paragraph. The problem is that so many managers don’t really understand how easy it is to “commit” retaliation under Burlington standard. They may even think they’re showing loyalty to the company when they’ve actually creating legal problems.