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Supreme Court Decision Extends Protection to Victims of Workplace Retaliation

Yesterday's Supreme Court decision in Burlington Northern & S.F.R. v. White had many bloggers commenting yesterday, well in advance of reports in the traditional, print media, which appeared this morning (roundup courtesy of How Appealing). A long-awaited decision with significant implications for employment lawyers,  Burlington holds that employees who suffer retaliation by employers as the result of complaints of workplace discrimination may sue for relief, even if the retaliatory action is not an "ultimate employment decision," such as termination or a formal demotion.  Under the Supreme Court's standard, a claim for retaliation is now actionable where a plaintiff shows that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'"

There's been a good deal of discussion on the impact of the decision going forward.   Linda Greenhouse's article in the NY Times reports that the potential impact may be widespread, given the increasing number of retaliation claims:

Retaliation claims make up an important and rapidly growing part of employment law. Some 20,000 retaliation cases were filed with the Equal Employment Opportunity Commission in 2004, a number that has doubled since 1992. The cases now account for more than one-quarter of the federal agency's docket.

"This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview .

And at Employers Lawyer Blog, Michael Fox has this to say:

My first thoughts -- a not terribly unexpected result. It will be talked about as a pro-employee decision -- which it is -- but employers can take heart in the explanatory comments, particularly that the test is objective. Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the Court.  What it certainly means however is a period of time until the Courts, at least in 10 circuits, sort through their new standard.

Criticism of the Court's decision comes primarily from those who are concerned that the Court's test for determining whether an action is "sufficiently adverse" is undefined and will create more litigation.  Tony Mauro's summary of Burlington notes the following:

“It’s [the Court's decision] an undefined standard that will create a lot of litigation,” says Allan Weitzman of Proskauer Rose, an employment law specialist. “None of our clients endorse retaliation, but we are talking about a situation that is fraught with human nature. If someone tells you that one of your employees has complained about you to the EEOC, you would be unhuman not to take it badly. Employers will have to be trained on how to be unhuman.”

Meanwhile, Ross Runkel at the Employment  Law Blog offers his insight on how the Supreme Court decision might be applied.


          o Changed job duties. In the Burlington case, the employer changed the employee's duties, however the duties were still within her job description. The job description did not matter. What mattered was that the new job was dirtier, harder, less prestigious, and perceived by other employees as being worse.

          o Temporary suspension. In the Burlington case, the employee was suspended for 37 days, and then reinstated with back pay. The Court said a reasonable employee would find a month without a paycheck to be a "serious hardship."

          o Schedule change. Might not matter to many employees, but "may matter enormously to a young mother with school age children."

          o Refusal to invite to lunch. Usually trivial, but exclusion from a weekly training lunch might well deter a reasonable employee from complaining.

Whether you  view Burlington as a lifesaver to employees who've suffered retaliation or as a burden to employers who'll now have to remain 100 percent stoic in the face of a discrimination claim, litigation over how the Court's new standard will apply will keep employee and employment lawyers (as well as the courts that hear these claims) busy for a some time to come.

Posted by Carolyn Elefant on June 23, 2006 at 03:25 PM | Permalink | Comments (0)


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