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Workplace Retaliation Claims Now Easier to Prove?


Friday, October 13, 2006


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This summer's U.S. Supreme Court's decision, Burlington Northern & Santa Fe Railway Co. v. White, has caused many to believe that it is now easier for employees to win cases alleging retaliation under Title VII of the Civil Rights Act of 1964. Employment attorneys have opined that courts will grant companies fewer summary judgments and will even increase the number of cases filed by employees. The court explained what is needed to prove retaliation, even if it had a poor set of facts with which to work.

The case involved a woman employed as a track laborer in the rail yard maintenance of way department. The job involved physical labor such as removing and replacing tracks, clearing brush and removing cargo spillage. Because she had experience operating a forklift, she primarily performed that work and did not do the standard tasks of the job. Not long into her employment, she complained about her supervisor insulting her and repeatedly making sexist comments to her (e.g., women should not be working in that department). This occurred in 1997, 33 years after Title VII was passed. An investigation resulted in the supervisor's suspension for 10 days and sex harassment training for him.

Unfortunately, the company had very bad timing. It chose that same moment to take the employee off the forklift and assign her to the regular duties of the track laborer job. She believed the change resulted from her complaint of harassment and filed an EEOC charge of sex discrimination and retaliation. The company argued it was fairer for a more senior employee to do the cleaner, easier work. Two months later, the employee filed a second charge alleging discrimination by heightened scrutiny.

The facts only get worse for the company. Right after the second charge, the employee and her supervisor got into an argument over which truck would take her to the work area and he charged her with insubordination. The company suspended her without pay for 37 days. She filed a grievance through the company's internal procedures and was reinstated with full back pay. Of course, she filed a third charge over the suspension.

Eventually, the employee sued the company for retaliation by changing her duties and suspending her. The jury awarded her $43,500 for compensatory damages on both claims and $3,250 for medical expenses. The company appealed the case to the 6th Circuit Court of Appeals. At first, the appeals panel held for the company. Then, the entire appeals court heard the appeal and the company lost the appeal. The issue most discussed was what proof was needed to show retaliation, where the employee had not lost money and was still employed in the same job.

As a reality check, one may reflect on the cost of this case to the company in time and money. The case started in 1997 and took nine years for it to be decided by the U.S. Supreme Court. It involved three EEOC charges and a lawsuit, a trial and two arguments before the appeals court and an argument to the Supreme Court. In addition, note that the employer must pay the employee's attorney's fees when it loses a case like this. So, although the employee made less than $50,000 off the case, her attorney fees are likely to be four to five times that amount. In addition, the company paid its attorneys and spent thousands of hours of management time on this case. In sum, we can assume that a sexist supervisor, a meaningless transfer of the employee to different work and a silly argument cost the company over a million dollars.

The Supreme Court's decision rests on the interpretation of the language and intent in Title VII. In one section, that law prohibits discrimination in terms and conditions of employment because of an employee's race, color, sex, national origin or religion. The intent of that section is to assure employees are not deprived of employment opportunities in terms and conditions of employment due to their race, color, sex, national origin or religion, i.e., because of who they are. A different section prohibits retaliation against employees because they oppose an unlawful practice or filed an EEOC charge or assisted in the charge. The retaliation section does not refer to terms and conditions of employment, and its intent is to protect employees who seek to secure or advance enforcement of the law, i.e., because of what the employees do. This different language and different intent resulted test for retaliation that differs from the test for discrimination.

The test for retaliation applies an objective standard. To prove retaliation, the employee "must show that a reasonable employee would have found the challenged action materially adverse, which in this context mean it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The determination of whether an action is materially adverse "depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Here, the Court concluded that a reasonable employee could find that being moved from a cushy job to a physical job could cause him/her to think twice about opposing harassment. Likewise, 37 days without pay, even if reimbursed, could cause him/her to refuse to file an EEOC charge. In either situation, the company's actions would have resulted in dissuading the employee from taking steps to enforce the law.

This case is important for many reasons. It lays to rest the controversy among courts about what constitutes retaliation. It reminds companies that the timing of a decision about an employee's job may make it appear the decision was tainted and what may seem a minor change in a job can rise to the level of a legal wrong. Finally, it reminds companies to talk to their employment lawyers before taking any action involving an employee who has complained about harassment or filed a charge of discrimination.

This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.