Employment Law Update

June 2006

The Threat of Retaliation: A New Bullet-Proof Vest?

Employees who have complained of discrimination are often treated with special deference afterward. Is this really necessary? Maybe.

The United States Supreme Court recently announced a very broad definition of retaliation recently was announced by the United States Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White (June 22, 2006). First, the good news: “An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Then, the bad news: Employers may be liable for retaliation if their subsequent action toward the complaining employee causes some subjective harm and “could well dissuade a reasonable worker from making or supporting a charge of discrimination” – and this liability “is not confined to” actions and harms that are “related to employment or occur at the workplace.” This means courts will look for subtler forms of retaliation than simple termination, demotion or a cut in pay.

Sheila White worked on the railroad in what traditionally had been a “man's job.” She complained to company officials when her supervisor told her women shouldn't be working in his department; she said the supervisor also had insulted her in the presence of her colleagues. After investigating, the boss told White the company was suspending the supervisor for ten days. At the same meeting, however, he also told her that her co-workers had complained that she had a better working assignment than men with the same tenure, so in the interest of “fairness,” he had assigned “a more senior man” to what he called the “less arduous and cleaner” assignment that had been hers before she complained.

Ms. White promptly told the EEOC the company had retaliated against her by changing her assignment. Two months later, Ms. White also told the EEOC that the company was keeping her under surveillance and monitoring her daily activities. A few days after the second EEOC complaint, the company accused Ms. White of insubordination and suspended her indefinitely - without pay. After a grievance proceeding and thirty-seven days without pay, Ms. White was returned to her job and awarded back-pay. A jury awarded her about $47,000 in damages. The appellate court and Supreme Court upheld the award.

In deciding this case, the Supreme Court set a broad, new standard for defining retaliation. The new standard may not significantly extend the standard California courts have been applying, but the its announcement does give employers a good reason to stop and assess their procedures for responding to employee complaints. Here are some pointers:

  1. Make sure your supervisors have been trained on how to identify and prevent discrimination. This is mandated by law for large employers, but critical as a risk management tool for every employer.
  2. Make sure all employees know how to register a complaint about discrimination. Tell them also that workplace harassment is a form of discrimination and that both discrimination and retaliation violate company policy.
  3. Take every complaint of employment discrimination seriously. Assign someone neutral to conduct a prompt investigation and reach a conclusion. (The focus usually should extend to an assessment of the accuser's general work environment, not just whether reported words were spoken or actions taken.)
  4. Take swift and sure action to address a work environment where discrimination or harassment has taken place. Disciplinary action and training may be appropriate. A well-enforced promise of non-retaliation for all witnesses is mandatory.
  5. Talk with a neutral person before allowing any action to be taken toward a person who complained or those who supported the complainer during an investigation. Consider whether a “reasonable” person might perceive the planned action as an effort to discourage this worker or others from making or supporting complaints. Remember that a schedule, training or assignment change need not be accompanied by a reduction in pay or benefits to be construed as retaliation. If a potentially negative action is really inevitable (like cancelling a training opportunity or changing an assignment), make sure the business rationale is both solid and transparent.
  6. When changing something about the work environment of someone who complained or supported a complaint of discrimination, talk through your intent and the worker's perception of it before the change is finalized. For example, you may gleefully promote an individual to reward good work, but the worker may object if the new job disrupts long-standing day-care arrangements.
  7. Before you demote or terminate the employment of a worker who has at any time made a complaint, founded or unfounded, be certain that you have created a good written record. It should document how and why your dissatisfaction began, how and when you communicated it to the employee and it should include enough supporting data to establish that your action was completely independent of the earlier complaint.

A Downey Brand lawyer would be happy to help guide you through these and other issues involving employee complaints and discipline. A few minutes on the telephone is often all it takes. Thank you for trusting us with your business and legal challenges.

 

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.