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Know Your Rights: Retaliation Claims Now Easier Know Your Rights Retaliation Claims Now Easier By JAMES A. BROWN
This summer, the high court surprised many by actually strengthening the workplace retaliation claims of those alleging employment discrimination. Today's column focuses on how this latest Supreme Court decision, Burlington Northern v. White, can benefit victims of unlawful retaliation. A Feared Claim Retaliation claims are often easily misunderstood. In order to state a valid retaliation claim, you must allege that your employer retaliated against you because you engaged in "protected activity." In the area of employment discrimination, you must claim that you were retaliated against precisely because you complained about unlawful discrimination. Also, your retaliation claim will likely be dismissed if the adverse action taken against you did not occur within weeks of your discrimination complaint. Most employers fear retaliation claims more than the actual, underlying discrimination claims. In part, this is because juries tend to respond favorably to retaliation claims which present a simple "cause and effect": you complained and you then suffered retribution because of your complaint. Discrimination claims, on the other hand, often fall victim to the jurors' own prejudices and biases. Provided you have a reasonable, good-faith basis for asserting your discrimination claim, your retaliation claim can also succeed even if your discrimination claim ultimately fails. In White, the Supreme Court considered a legal issue dividing the Federal courts. What type of adverse action, taken by an employer, qualifies as unlawful retaliation under Title VII (the Federal law governing gender, race, religious and national origin discrimination)? For example, does an employer's decision to change your work schedule or to transfer you, in response to your discrimination complaint, constitute unlawful retaliation? Old Standard The Second Circuit Court of Appeals (which sits in the New York area) had held that an adverse action is a "materially adverse change in the terms and conditions of employment." Such "materially adverse changes," related to terms and conditions of employment, were typically limited to terminations, demotions and transfers involving significantly diminished responsibilities. Thus, the Second Circuit focused only on the adverse action's impact on your job. If the impact was not sufficiently negative, there could be no valid retaliation claim. The Supreme Court offered a more employee-friendly standard. A plaintiff alleging retaliation must now show that the employer's action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court set this legal standard after noting that the "primary purpose" of Title VII's anti-retaliation provision was to preserve an employee's "unfettered access" to the remedies intended to eradicate unlawful discrimination. This new standard (which is "new" for most Federal courts) still requires an examination of the adverse action taken against the employee. This is because the Supreme Court made clear that an employee is not protected from "all retaliation, but from retaliation that produces an injury or harm." The Court clearly believed that only injurious retaliation could actually "dissuade" employees from coming forward with their discrimination complaints. Context Matters Under the new standard, retaliation claims are to be examined on a case-by-case basis. As the Court states: "context matters." No longer is there to be any specific list of prohibited acts which qualify as unlawful retaliation. As the Court observes, a schedule change may have little effect on most employees, but to a single mother with child-care concerns, an employer's decision to change an employee's schedule in response to a discrimination complaint may constitute unlawful retaliation. The Supreme Court forewarned that its decision does not recognize retaliation claims based on "petty slights or minor annoyances that often take place at work and that all employees experience." Yet by establishing a standard which makes unlawful those employer actions likely to deter employees from complaining about discrimination, the Court has potentially expanded the range of adverse actions which qualify as unlawful retaliation. In so doing, the Supreme Court has handed employees a rare and much-needed victory.
James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .
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