JULY 2006

JUDICIAL UPDATES

U.S. Supreme Court Has Broadened the Scope of Retaliation Claims under Title VII

The United States Supreme Court has recently issued a decision that is likely to have a substantial impact on retaliation claims under Title VII, the federal law prohibiting discrimination, harassment and retaliation in the workplace. Though its impact in California will be less because most retaliation claims in this state are made under the Fair Employment & Housing Act, it is still worth knowing about this recent case. The decision makes it easier for employees to prevail on retaliation claims under federal law. All employers should understand the new scope of Title VII retaliation claims.

Facts

Sheila White (“Employee”) was the only woman who worked in the maintenance department at the Tennessee location of Burlington Northern & Santa Fe Railway Company (“Employer”). Employee came to the company with significant experience in operating forklifts. She was hired as a “track laborer,” which involved removing and replacing track components, transporting track material, cutting brush and clearing litter and cargo spillage from the tracks and surrounding areas. When a worker who had been operating a forklift chose to do another job, Employee was assigned to operate the forklift, and this became her primary responsibility.

In September 1997, Employee complained to Employer that her immediate supervisor had repeatedly told her that women should not be working in the maintenance department. Allegedly, the supervisor also made inappropriate remarks to her in front of her male co-workers. After Employer’s investigation, the supervisor was suspended for 10 days and ordered to attend sexual harassment training.

On September 26, 1997, the senior manager who had hired Employee informed her about the discipline against the supervisor. At the same time, the manager told Employee that he was removing her from forklift duty and assigning her to perform only standard track laborer work. He did this because of the complaints of co-workers that a more senior person should have the “less arduous and cleaner job” of forklift operator.

Two weeks later, Employee filed a complaint with the EEOC to claim that the reassignment of her duties constituted unlawful gender discrimination, as well as retaliation for her earlier complaint about her supervisor. Two months later, Employee filed a second retaliation charge with the EEOC to claim that the manager had placed her under surveillance and was monitoring her daily activities.

Several days later, Employee and her new immediate supervisor disagreed about how employees should be transported from one location to another. The supervisor told the senior manager that Employee had been insubordinate. Employee was immediately suspended without pay. Employee made an internal grievance, and the result of the grievance was that Employee had not been insubordinate. Employer reinstated Employee to her position and awarded her back pay for the 37 days that she was suspended. Employee filed another retaliation charge based on the suspension.

The Decision

Employee prevailed in her federal court lawsuit, receiving compensatory damages from the jury. On appeal, the Sixth Circuit Court of Appeals affirmed the decision, holding that a retaliation plaintiff must prove that she suffered an “adverse employment action,” which is a materially adverse change in the terms and conditions of employment. Because the various circuit courts of appeals around the country have applied varying standards for retaliation claims under Title VII, the United States Supreme Court used this case as an opportunity to resolve the conflict and announce the standard to be applied in all Title VII retaliation cases. The Court observed that the anti-retaliation provision of Title VII, unlike the anti-discrimination provision, does not confine the actions that it forbids to those that are related to employment or occur at the workplace. Accordingly, the conduct prohibited by the anti-retaliation provision is not limited to actions that affect employment terms and conditions. The Court held that the anti-retaliation provision extends to any employer actions that would have been “materially adverse” to a reasonable employee or applicant.

In the Court’s view, a retaliation plaintiff must show that the challenged action might have dissuaded a reasonable worker from making or supporting a charge of discrimination. The standard is an objective one, and its application must be made on a case-by-case basis in the context of the particular circumstances of the claim at issue.

Comparison with California Law

This standard for Title VII retaliation claims is very much pro-employee, even more favorable to employees than the standard utilized under California law. In 2005, the California Supreme Court clarified that, under the Fair Employment & Housing Act, a claim for retaliation requires an employee to establish that she engaged in “protected activity” and that she was subjected to an “adverse employment action” because of that activity. An adverse employment action must materially affect the terms and conditions of employment. Courts can consider the cumulative effect of a number of separate actions in determining whether this “materiality” standard has been satisfied.

Under any law, claims of retaliation have become easier to prove. Employers must be especially careful in how they, through their supervisors, treat employees who have made claims of discrimination, harassment or other unlawful conduct, even if those claims are believed to have no merit, or have been proven to have no merit.

NEXT: Employee Can Pursue Same-Sex Harassment Claim Because the Unwelcome Conduct by Male Co-Workers Challenged His Identity as a Heterosexual Male