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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.

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."

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).

Senior Editor

Mary Swanton

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