Exactly What Is “Retaliation”?

Exactly What Is “Retaliation”?

All employers know (or certainly should know) that it is unlawful to retaliate against an employee for engaging in activity protected by civil rights laws. However, questions continue to arise as to the scope of “retaliation.” Several years ago, the Supreme Court resolved one issue, finding that unlawful retaliation could occur beyond the boundaries of the employment relationship: for example, when an employer refuses to hire an applicant, or provides a negative reference for an ex-employee who has engaged in protected activity. Another question is how severe the employer’s conduct must be. Clearly, an “ultimate decision,” such as termination or denial of a promotion, would be severe enough, but what about lesser sanctions that are still painful to the employee?

This past summer, the Supreme Court provided guidance on this latter issue in the case of Burlington Northern & Santa Fe Railway Co. v. White. The Court said that any conduct that would cause a “reasonable employee” to feel dissuaded from engaging in protected activity will be considered sufficiently “adverse” to give rise to a retaliation claim. Although Burlington Northern dealt with a retaliation claim under Title VII of the Civil Rights Act of 1964, the reasoning in the decision will probably be applicable to many other types of retaliation claims.

A retaliation primer
A valid retaliation claim consists of three elements: (1) legally protected activity, (2) adverse employment action, and (3) a “causal nexus” (that’s lawyerese for “connection”) between the protected activity and the adverse action.

There are two types of protected activity under Title VII: “participation,” which includes such things as filing an EEOC charge or lawsuit, and testifying on behalf of a charging party or plaintiff in a discrimination case; and “opposition,” which includes more informal actions, such as making comments or complaints in the workplace about alleged discrimination.

It is not unusual for the parties in a retaliation case to dispute whether the employee actually engaged in protected activity (or whether the employer knew about it), or whether the adverse action was connected with the protected activity. But in a relative handful of cases, the employer may argue that the action taken was not substantial enough to constitute an adverse action. The Burlington Northern decision addressed this last issue.

What happened
Sheila White complained to her employer about sexual harassment. She was subsequently accused of insubordination. While the insubordination investigation was pending, White was transferred to a less desirable job (although with the same title and same rate of pay as her previous job) and suspended without pay for 37 days. The investigation was eventually resolved in White’s favor, and she was paid for the missed days. However, she sued, alleging that the railroad’s delayed wage payment and the transfer constituted retaliation in violation of Title VII.

A jury found in White’s favor, but a panel of the Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) reversed the verdict, concluding that neither the transfer nor the delayed pay amounted to actionable adverse employment actions. The case was reheard before the full Sixth Circuit, which agreed with the District Court. The railroad appealed to the U.S. Supreme Court.

The Supreme Court ruled in White’s favor, affirming the full Sixth Circuit. First, the Court noted that retaliation claims could be based on conduct that did not directly affect the workplace. Second, the Court said that conduct is sufficiently “adverse” (“substantial” might be a better word) if a reasonable employee would find the action to be adverse; or, put another way, “[the conduct] might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This invalidates the standards that had previously been applied in many courts, which had required retaliation claims to be based on an “ultimate” employment decision (for example, termination or denial of a promotion).

The Court cautioned, however, that the “reasonable” adjective is significant. An employee’s unreasonable or irrational belief – no matter how sincerely held – will not give rise to a retaliation claim. Nor will trivial unpleasant actions on the part of the employer. For example, the Court said, “petty slights, minor annoyances, or simple lack of good manners” are normally not enough to give rise to a retaliation claim.

Impact of Burlington Northern
Burlington Northern will make it more difficult for employers to get summary judgment in retaliation cases. Moreover, we foresee a new body of court decisions dealing with “the reasonable person” in the retaliation context.

What should employers do in a post-Burlington Northern world? We suggest the following:

• Educate supervisors and managers. Supervisors and managers should be well versed in the concept of retaliation and know that it is strictly prohibited. They should understand that virtually every employment-related law on the books prohibits retaliation.

• Keep a close watch on any “vindictive” managers. Some personalities are more naturally “vindictive” than others. Not all vindictive behavior is unlawful, but supervisors and managers who are generally reputed to be vindictive are more likely to engage in behavior that could “dissuade” a reasonable person from engaging in protected activity. Moreover, vindictive managers are more likely to be reasonably perceived by their employees as retaliatory, whether the managers actually are or not. “Vindictive” perceptions and personality issues should also be addressed in the managers’ performance evaluations.

• A stitch in time saves nine. If you don’t already do it, you should ensure that any supervisor or manager who is getting ready to discipline, transfer, demote, or terminate an employee identify whether the employee has engaged in legally protected activity. If so, the decision should be reviewed by Human Resources or Legal before any action is taken. Post-employment conduct can also be retaliatory, so individuals who provide reference information should also consult with Human Resources or Legal before they deviate from the employer’s normal practice.

• Make sure employees know their rights. This is cringe-inducing, but sound, advice. All employees should feel assured that they can raise certain issues in the workplace without the fear of retaliatory action. If the employees believe that the company will protect them, they will be less likely to be “dissuaded” from engaging in protected activity.

• Where you find retaliation, crack down on the retaliators, and (where possible) make sure employees know you did. Certainly a manager accused of retaliation is entitled to a full and fair investigation. If the evidence is only ambiguous or weak, it may not be appropriate to take action. But in the (hopefully rare) instances in which a manager is found to have retaliated, employers should not be afraid to be tough. (CAUTION: Be sure that any statements you make are 100 percent factual and given to those only with a need to know so that you will not open yourself to a defamation claim from the manager.)

• But don’t overreact. Finally, don’t think that Burlington Northern means you can never take appropriate action against an employee who has engaged in protected activity. Generally, if an employer treats the “protected” employee the same as it would treat any other employee with the same performance deficiencies, behavior issues, and the like, it will be prevail in a retaliation claim.

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