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Retaliation Redefined

Beth, a mother of two young children, files a sexual harassment claim with the EEOC, claiming her supervisor propositioned her. A few days later, the company changes her work hours from 8 a.m. - 4 p.m. to noon - 8 p.m. as part of a department reorganization. Her job duties, pay and benefits, though, remain the same. Beth amends her complaint, claiming the new schedule is punishment for her harassment charge.

Based on a recent Supreme Court ruling in Burlington Northern & Santa Fe Railway Co. v. Sheila White, this hypothetical story could end with a hefty jury award for Beth. The High Court decision is expected to have a profound impact on employers by expanding the scope of actions subject to Title VII retaliation claims beyond what had been allowed in most Circuits, including actions that affect an employee off the job. Instead of establishing the clear standard employers had hoped for, the justices said that courts must view each case through the lens of the complainant.

"Context matters," Justice Stephen Breyer wrote in the June 22 decision. "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children."

The upshot likely will be more trials in retaliation cases as judges decide to let a jury weigh the context instead of issuing summary judgment.

"This is likely to be the most troubling legacy of this decision for employers," says Anderson Scott, partner in Fisher & Phillips' Atlanta office. "It requires courts to wade into the minutia of an employee's claims to determine on a case-by-case basis whether an act is retaliatory, given the employee's specific circumstances."

White's Christmas

Some think it was unfortunate that the court picked Burlington Northern v. White as the vehicle for setting the retaliation standard. White's saga began in September 1997 after she alleged that a supervisor sexually harassed her. The company disciplined the supervisor and then reassigned White from forklift operator to track laborer, though it didn't change her pay and benefits. She filed a retaliation claim arguing that the new job was dirtier and involved more physical labor. After White got into a dispute with another supervisor in early December, the company suspended her for insubordination. Thirty-seven days later, however, it exonerated and reinstated her with full back pay. Her second retaliation complaint cited the emotional stress of being without work for more than a month over the Christmas holidays. A jury awarded her $43,500 in damages, setting off a chain of appeals that ended at the Supreme Court.

The fact that it took Burlington Northern 37 days to reinstate White, coupled with her testimony about her family's bleak holiday, created a perfect storm of circumstances.

"If you get a complaint, an employer must take prompt, immediate action," says Gregory Reilly, shareholder in Littler Mendelson in New York. "They didn't and it got them in trouble. And since Breyer said it's all about context, the decision might have been different if the suspension wasn't at Christmastime."

The Court rejected the notion that employers can avoid retaliation claims by writing a check for back pay.

"I don't know that the Supreme Court had ever said definitively that even if the employer makes you whole, you can still get compensatory damages," says Peter Donati, partner in Levenfeld Pearlstein in Chicago. "Now this question has been answered."

The nature of the appeal also was problematic for employers. Retaliation cases revolve around two separate arguments: was the action taken in retaliation, and was it serious enough to be considered retaliatory. Burlington Northern did not challenge the first point. The High Court ruled solely on the issue of whether the actions were serious enough to be

considered retaliation.

"Now the definition of retaliatory conduct has been made broader than what employers wanted it to be," says Allan Weitzman, partner in Proskauer Rose in Boca Raton, Fla., who filed an amicus brief on behalf of the Society for Human Resource Management and the National Federation of Independent Business Legal Foundation. "Many more actions will fall under the rubric of adverse action."

Unwelcome Standard

Employment attorneys had hoped that the Supreme Court would set a high standard for retaliation claims, resolving conflicting standards the Circuit courts use. Instead "they carefully reviewed how the Circuits came out, and then went off into uncharted waters," says Margaret Hart Edwards, shareholder in Littler Mendelson in San Francisco. "In the process, they created a bit of a nightmare for employers."

The Supreme Court said the standard is whether the action "would have been materially adverse to a reasonable employee" and must be harmful enough that it might dissuade a reasonable worker from filing a discrimination complaint. Justice Samuel Alito, who concurred in the result but criticized the majority's reasoning, complained, "The introduction of this new and unclear standard is unwelcome." Alito noted that while the opinion purports to establish an objective test--whether a challenged action would dissuade a reasonable worker from filing a claim--it also requires that the circumstances of the particular worker be considered.

The Court rejected the more restrictive standard used in the 3rd, 4th and 6th Circuits--that an action must adversely impact a term or condition of employment to be considered retaliation--and the 5th and 8th Circuit standard that the conduct must constitute an "ultimate employment decision," such as firing or demotion in order to be considered retaliatory.

"The rule (in most Circuits) that there had to be serious harm caused to the plaintiff was a significant screening device," says John Myers, partner in Eckert Seamans Cherin & Mellott in Pittsburgh. "The Supreme Court decision will encourage employees that have not been harmed seriously to file retaliation complaints because they will be able to keep the case alive in the courts."

Donati noted that while the retaliatory actions in the Burlington case were employment-related, the opinion concludes that retaliation can extend beyond the workplace. For example, the Court cites the case of an FBI agent who claimed he was not warned about threats to his life from an inmate. According to the Court, "a provision limited to employment-related actions would not deter the many forms that effective retaliation can take."

Bright Spots

According to Weitzman, there are some bright spots for in-house counsel because the Court specified that "petty slights, minor annoyances and simple lack of good manners" by the employer do not constitute retaliatory behavior. The Court differentiated between a supervisor not inviting an employee out to lunch (a petty slight) and excluding an employee from a lunch that includes a training program (an action causing material harm).

"We will be litigating what is a petty slight," Weitzman predicted. "I will argue that it was a petty slight, the plaintiff's attorney will argue that it produced material harm, and it will be off to the jury."

In fact, employment attorneys are convinced they will be spending a lot of time arguing retaliation cases in front of juries until the courts more clearly define where the lines are drawn.

"The courts could get run over with the kind of thing they hate--spending three days listening to arguments about whether the fact that someone's desk was moved from the second to the third floor was retaliation," says Michael Fox, shareholder in Ogletree Deakins' Austin, Texas, office. "I hope those cases will come forward so the Circuits can send a message that we have new words but not significant change."

Senior Editor

Mary Swanton

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