LOWENSTEIN SANDLER PC CLIENT ALERT EMPLOYMENT LAW EMPLOYERS BEWARE: A RECENT UNITED STATES SUPREME COURT DECISION MAKES IT MORE DIFFICULT TO DEFEND AGAINST RETALIATION CLAIMS By David M. Wissert, Esq. and Gina M. Sarracino, Esq. August 2006 We write to inform you of a of the White decision on employers supervisor was serving his suspension, recent United States Supreme is likely to be significant. As will be a company official informed the plain- Court decision that impacts all discussed in more detail below, this tiff that she was being removed from employers. Recently, the decision likely will make it more diffi- forklift duty and reassigned to stan- Supreme Court issued its long- cult for employers to defend against dard “track laborer” tasks, which were awaited decision in Burlington claims of retaliation, and brings to less desirable in that such tasks were Northern & Santa Fe Railway light the importance of putting in considered more physically onerous Company v. White, No. 05-259, place effective policies, procedures and and dirtier than operating the forklift. 126 S. Ct. 2405 (2006), which training programs to prevent and deal broadens the standard for The plaintiff filed a complaint with the effectively with retaliation claims. determining what type of con- Equal Employment Opportunity duct constitutes retaliation Facts of the Case Commission (“EEOC”), claiming that under Title VII of the Civil her reassignment was a retaliatory Rights Act of 1964 (“Title VII”). In Burlington Northern and Santa Fe response to her complaint about her Railway Company v. White, No. 05- supervisor’s remarks. Soon thereafter, 259, 126 S. Ct. 2405 (2006), the With this decision, the Court held that the plaintiff had a disagreement with plaintiff, Sheila White, a forklift opera- an employer’s adverse actions need her new immediate supervisor, and tor for the defendant railway company, not be related to employment or occur she was suspended without pay for and the only female employee working at the workplace to be considered insubordination. The Company later in her department, complained to “retaliation.” Instead, the Court con- concluded that the plaintiff had not company officials about her supervisor’s cluded that an employment action is been insubordinate and they reinstated inappropriate and insulting remarks retaliatory under Title VII if it is “mate- her and awarded her backpay for the about women in the workplace. After rially adverse to a reasonable employee 37 days she had been suspended. conducting an internal investigation, or job applicant,” or, more specifically, The plaintiff then filed another retalia- the company suspended the plaintiff’s harmful to the point that the action tion charge with the EEOC based on supervisor for 10 days and ordered “could well dissuade a reasonable her suspension. him to attend anti-harassment worker from making or supporting a training. At the same time that the charge of discrimination.” The impact
LOWENSTEIN SANDLER PC CLIENT ALERT Employment Law Subsequently, the plaintiff sued the In its analysis, the Supreme Court com- ing against an employee outside of railway company in federal court, pared the language of Title VII’s anti- the workplace. claiming that it unlawfully retaliated retaliation provision with its anti-dis- Based upon this reasoning, the Court against her in violation of Title VII by crimination provision and focused on concluded that the scope of Title VII’s changing her job responsibilities from the differences between the two. The anti-retaliation provision “extends forklift operator to track laborer, and Court noted that while the language beyond workplace-related or employ- by suspending her for 37 days without of the anti-discrimination provision ment-related retaliatory acts and pay. At the conclusion of trial, the jury (specifically, “hire,” “discharge,” harm,” and thus rejected any found in the plaintiff’s favor on both “compensation, terms conditions, or previously-articulated standards that retaliation claims and awarded her privileges of employment,” “employ- treated the anti-retaliation provision $43,500 in compensatory damages. ment opportunities,” and “status as as “forbidding the same conduct Initially, a panel on the Sixth Circuit an employee”) explicitly limits the prohibited by the anti-discrimination Court of Appeals reversed the jury’s scope of the provision to employer provision” and that limited action- verdict. The full panel later affirmed actions that affect employment or alter able retaliation to “ultimate the decision in favor of the plaintiff on the conditions of the workplace, the employment decisions.” both retaliation claims, but disagreed anti-retaliation provision does not as to the appropriate retaliation contain such limiting language. The The Court held that a plaintiff must show that “a reasonable employee standard to apply. Court thus turned to the purpose of the provisions, to determine whether would have found the challenged The Supreme Court’s Congress intended that the use of action materially adverse, ‘which in Decision different words in the two provisions this context means it well might have Title VII’s anti-retaliation provision pro- made a “legal difference.” dissuaded a reasonable worker from hibits employers from taking actions making or supporting a charge of The Court explained that the anti- that discriminate against an employee discrimination.’” The Court noted discrimination section of Title VII seeks or job applicant because the employee the importance of distinguishing to ensure a workplace that does not has opposed a practice forbidden “significant” from “trivial” harms, and discriminate against individuals based by Title VII or has “made a charge, stressed that “context matters.” By upon their race, ethnicity, religion testified, assisted, or participated in” way of example, the Court explained or gender, while the anti-retaliation a Title VII proceeding, investigation that usually a supervisor’s refusal to provision’s objective is to prevent an or hearing. 42 U.S.C. § 2000e-3(a). invite an employee to lunch is a trivial employer from interfering, through At the outset of the White opinion, and petty slight. However, if a supervi- retaliation, with an employee’s efforts the Supreme Court noted that the sor were to exclude an employee from to “secure or advance enforcement of Courts of Appeals across the country a weekly training session lunch that [Title VII’s] guarantees.” While have applied different standards under contributes to the employee’s career Congress could secure the first objec- Title VII’s anti-retaliation provision as advancement, that “might well deter tive by prohibiting only employment- to: 1) whether the employer’s action a reasonable employee from complain- related discrimination, Congress could in question must be related to ing about discrimination.” not achieve the second objective employment; and 2) how harmful by doing so because it “would not Applying this analysis to the facts of the employer’s action has to be to deter the many forms that effective Ms. White’s case, the Court concluded constitute retaliation. retaliation can take,” including retaliat- that the jury verdict in favor of the
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