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	Supreme Court Gives Employees Broader Protection Against Retaliation in the Workplace Employment/Labor  The Supreme Court made it easier for workers to sue their employers for retaliating against them when they complain about discrimination or harassment on the job [Burlington Northern & Santa Fe Railway Co. v. White, No. 05-0259]. The 9-0 decision last week substantially expands the legal rights of millions of workers who are covered by Title VII of the 1964 Civil Rights Act. Under the anti-retaliation standard adopted by the court, any "materially adverse" employment action that would deter a "reasonable worker" from complaining about discrimination constitutes unlawful retaliation. Depending on the context, a change in work schedule or even the failure to invite an employee to lunch may be considered materially adverse and might deter a reasonable employee from complaining, the Court ruled. Not surprising, the ruling is a significant victory for employees in that the Supreme Court rejected more restrictive standards of retaliatory behavior. The Court brought a measure of clarity to an area of law that generates thousands of cases per year, but had produced conflicting interpretations of Title VII in the lower courts. Using its new standard, the Court concluded that a broad reading of the anti-retaliation provision is necessary since an "employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace," such as by filing a false criminal charge against an employee who had complained about discrimination. In reaching its conclusion, the Court addressed the standard for determining whether an alleged harm constituted unlawful retaliation. The Court held that a plaintiff must show that the alleged harm is: (1) significant and not trivial; (2) based upon an objective standard of the reasonable employee; and (3) must be decided in context from the perspective of a reasonable person in plaintiff's position. To illustrate the application of these principles, the Court offered two examples. Justice Stephen Breyer, writing for the court, cited a past case in which a mother of a disabled child had sued for retaliation because she was put on a shift that made it hard for her to spend days at home. Justice Breyer wrote that "a schedule change may make little difference to many workers, but may matter enormously to a young mother with school age children." Even refusing to invite a worker to lunch can be retaliation, Justice Breyer wrote, if it is "a weekly training lunch that contributes significantly to the employee's professional advancement." Industry groups had argued for a single clear standard for discrimination and retaliation. Rejecting the employer's argument, the Supreme Court noted that Title VII's anti-discrimination provision and retaliation provisions differ significantly and should be interpreted differently. While Title VII bars discrimination on the basis of race, ethnicity, gender and religion with respect to the "terms and conditions" of employment, "no such limiting words appear in the anti-retaliation provision," Justice Breyer said. The Court held that there was "strong reason to believe" that Congress intended the protection against retaliation to be broader than the protection against discrimination because it wanted to "deter the many forms that effective retaliation can take," in the workplace and beyond. Burlington Northern Case In the case decided last week, the high court unanimously upheld a $43,500 damage award to Sheila White, a forklift operator and the only female in her department at Burlington's Tennessee Yard in Memphis. Shortly after her hire, White complained of sexual harassment by her boss. He was sent to sexual harassment training and she was reassigned to a track laborer job that was harder, dirtier labor. She was eventually suspended for 37 days without pay for insubordination. The company later reinstated her with back pay after an internal grievance procedure concluded she had not been insubordinate. White then filed retaliation charges with the EEOC. After exhausting her administrative remedies, she filed an action against Burlington in federal court claiming that Burlington's actions amounted to unlawful retaliation under Title VII. Conclusion The Burlington Northern opinion is a very significant employment ruling that substantially enhances legal protection against retaliation for employees who complain about discrimination or harassment on the job. What does that mean for employers? Employers must take special care in making sure an employee who lodges a discrimination complaint does not suffer adverse consequences. Whether an action is materially adverse will depend on the circumstances of a particular case and should be judged from the perspective of a reasonable person in plaintiff's position. Employers should review their personnel management practices to ensure those practices align with the Supreme Court's standard. ********** For further information or questions regarding this eAlert, please contact Wayne Hersh at 949-474-1880. The Berger Kahn Labor & Employment Group publishes eAlerts on timely labor and employment issues. This eAlert is intended for general information purposes only, and does not constitute legal advice. Labor & Employment Contacts: Wayne Hersh 949-474-1880, x340 whersh@bergerkahn.com Jon Miller 949-474-1880, x322 jmiller@bergerkahn.com ©2006 Berger Kahn, A Law Corporation. All Rights Reserved. Back
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