EMPLOYMENT LAW EMPLOYERS BEWARE: A RECENT UNITED STATES SUPREME - - PDF document

We write to inform you of a recent United States Supreme Court decision that impacts all

• employers. Recently, the

Supreme Court issued its long- awaited decision in Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, 126 S. Ct. 2405 (2006), which broadens the standard for determining what type of con- duct constitutes retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”). With this decision, the Court held that an employer’s adverse actions need not be related to employment or occur at the workplace to be considered “retaliation.” Instead, the Court con- cluded that an employment action is retaliatory under Title VII if it is “mate- rially adverse to a reasonable employee

• r job applicant,” or, more specifically,

harmful to the point that the action “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The impact

• f the White decision on employers

is likely to be significant. As will be discussed in more detail below, this decision likely will make it more diffi- cult for employers to defend against claims of retaliation, and brings to light the importance of putting in place effective policies, procedures and training programs to prevent and deal effectively with retaliation claims.

Facts of the Case

In Burlington Northern and Santa Fe Railway Company v. White, No. 05- 259, 126 S. Ct. 2405 (2006), the plaintiff, Sheila White, a forklift opera- tor for the defendant railway company, and the only female employee working in her department, complained to company officials about her supervisor’s inappropriate and insulting remarks about women in the workplace. After conducting an internal investigation, the company suspended the plaintiff’s supervisor for 10 days and ordered him to attend anti-harassment

• training. At the same time that the

supervisor was serving his suspension, a company official informed the plain- tiff that she was being removed from forklift duty and reassigned to stan- dard “track laborer” tasks, which were less desirable in that such tasks were considered more physically onerous and dirtier than operating the forklift. The plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), claiming that her reassignment was a retaliatory response to her complaint about her supervisor’s remarks. Soon thereafter, the plaintiff had a disagreement with her new immediate supervisor, and she was suspended without pay for

• insubordination. The Company later

concluded that the plaintiff had not been insubordinate and they reinstated her and awarded her backpay for the 37 days she had been suspended. The plaintiff then filed another retalia- tion charge with the EEOC based on her suspension.

LOWENSTEIN SANDLER PC CLIENT ALERT

EMPLOYMENT LAW

EMPLOYERS BEWARE: A RECENT UNITED STATES SUPREME COURT DECISION MAKES IT MORE DIFFICULT TO DEFEND AGAINST RETALIATION CLAIMS

By David M. Wissert, Esq. and Gina M. Sarracino, Esq. August 2006

LOWENSTEIN SANDLER PC CLIENT ALERT

Employment Law

Subsequently, the plaintiff sued the railway company in federal court, claiming that it unlawfully retaliated against her in violation of Title VII by changing her job responsibilities from forklift operator to track laborer, and by suspending her for 37 days without

• pay. At the conclusion of trial, the jury

found in the plaintiff’s favor on both retaliation claims and awarded her $43,500 in compensatory damages. Initially, a panel on the Sixth Circuit Court of Appeals reversed the jury’s

• verdict. The full panel later affirmed

the decision in favor of the plaintiff on both retaliation claims, but disagreed as to the appropriate retaliation standard to apply.

The Supreme Court’s Decision

Title VII’s anti-retaliation provision pro- hibits employers from taking actions that discriminate against an employee

• r job applicant because the employee

has opposed a practice forbidden by Title VII or has “made a charge, testified, assisted, or participated in” a Title VII proceeding, investigation

• r hearing. 42 U.S.C. § 2000e-3(a).

At the outset of the White opinion, the Supreme Court noted that the Courts of Appeals across the country have applied different standards under Title VII’s anti-retaliation provision as to: 1) whether the employer’s action in question must be related to employment; and 2) how harmful the employer’s action has to be to constitute retaliation. In its analysis, the Supreme Court com- pared the language of Title VII’s anti- retaliation provision with its anti-dis- crimination provision and focused on the differences between the two. The Court noted that while the language

• f the anti-discrimination provision

(specifically, “hire,” “discharge,” “compensation, terms conditions, or privileges of employment,” “employ- ment opportunities,” and “status as an employee”) explicitly limits the scope of the provision to employer actions that affect employment or alter the conditions of the workplace, the anti-retaliation provision does not contain such limiting language. The Court thus turned to the purpose of the provisions, to determine whether Congress intended that the use of different words in the two provisions made a “legal difference.” The Court explained that the anti- discrimination section of Title VII seeks to ensure a workplace that does not discriminate against individuals based upon their race, ethnicity, religion

• r gender, while the anti-retaliation

provision’s objective is to prevent an employer from interfering, through retaliation, with an employee’s efforts to “secure or advance enforcement of [Title VII’s] guarantees.” While Congress could secure the first objec- tive by prohibiting only employment- related discrimination, Congress could not achieve the second objective by doing so because it “would not deter the many forms that effective retaliation can take,” including retaliat- ing against an employee outside of the workplace. Based upon this reasoning, the Court concluded that the scope of Title VII’s anti-retaliation provision “extends beyond workplace-related or employ- ment-related retaliatory acts and harm,” and thus rejected any previously-articulated standards that treated the anti-retaliation provision as “forbidding the same conduct prohibited by the anti-discrimination provision” and that limited action- able retaliation to “ultimate employment decisions.” The Court held that a plaintiff must show 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.’” The Court noted the importance of distinguishing “significant” from “trivial” harms, and stressed that “context matters.” By way of example, the Court explained that usually a supervisor’s refusal to invite an employee to lunch is a trivial and petty slight. However, if a supervi- sor were to exclude an employee from a weekly training session lunch that contributes to the employee’s career advancement, that “might well deter a reasonable employee from complain- ing about discrimination.” Applying this analysis to the facts of

• Ms. White’s case, the Court concluded

that the jury verdict in favor of the

plaintiff, which found that the reas- signment of the plaintiff from forklift

• perator to track laborer duty and

suspending her for 37 days without pay constituted retaliation under Title VII, was appropriate. The Court found that, although reassignment of job duties “is not automatically action- able,” in this case, the jury was presented with considerable evidence that the track laborer duties were more arduous and dirtier, that the forklift operator position was consid- ered more prestigious, and that the plaintiff’s male co-workers resented her for having the forklift job. As such, the Court determined that a jury reasonably could conclude that the plaintiff’s reassignment “would have been materially adverse to a reason- able employee.” Further, the Court also found that the jury’s conclusion that the plaintiff’s 37 day suspension was materially adverse “was a reasonable one,” noting that “[m]any reasonable employees would find a month without a paycheck to be a serious hardship ... A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former.”

What Will This Decision Mean for Employers?

The White decision likely will have a great impact on employers, making it more difficult to defend against retalia- tion cases brought under Title VII. First, while retaliation cases already have been on the rise, it is likely that as a result of the White decision, even more retaliation cases will be filed. Second, it is likely that, when filed, more retaliation cases will survive the “summary judgment” stage of litiga- tion, meaning that it will be more difficult for employers to argue that, as a matter of law, a retaliation case should be dismissed and should not proceed to trial. Employers located in jurisdictions that followed a different standard than the one adopted by the Supreme Court (including employers in New Jersey and New York) will no longer be able to argue successfully that a plaintiff’s retaliation case should not be heard by a jury because an alleged act of retaliation did not involve a change in the terms and conditions of employment or did not amount to an “ultimate employment action” such as discharge or demotion. Further, although the Court noted that trivial harms do not rise to the level of actionable retaliation, and that an

• bjective standard of a “reasonable”

employee, and not a hypersensitive employee, should apply, the Court also stressed that the context of the alleged harm matters, thus providing no bright-line test to guide employers about what actions constitute retalia-

• tion. Employers therefore should moni-

tor carefully disciplinary actions taken against employees and take steps to minimize the risk that routine actions such as changing an employee’s work schedule are not seen as retaliatory. To use one of the Court’s examples, employers should be careful when making changes to an employee’s work schedule, because certain employees, such as those with school age children who need to pick them up at school at a certain time, may claim that the schedule change is retaliation because the employee complained of discrimination. In light of the White decision and its likely ramifications, there are several steps employers can take to avoid situ- ations giving rise to retaliation claims, and to deal effectively with those claims if litigation arises. First, employ- ers should draft and disseminate effec- tive anti-discrimination, anti-retaliation and anti-harassment policies that make clear that discrimination and retaliation in any form will not be tolerated. Next, employers should ensure that supervi- sors, human resource professionals and employees receive ongoing training on appropriate workplace behavior, and that all supervisors and human resource professionals are trained on the steps to be taken upon receipt of,

• r upon learning of, an employee’s

claim of discrimination, harassment, or retaliation against the employer. It is also important for employers to docu- ment carefully each employee’s work- related performance issues and any disciplinary actions taken against each

• employee. It would be prudent to con-

sult with counsel to discuss whether your current policies and procedures are up to date and to arrange for in-house employee training seminars.

LOWENSTEIN SANDLER PC CLIENT ALERT

EMPLOYMENT LAW

65 Livingston Avenue 1251 Avenue of the Americas Roseland, NJ 07068 New York, NY 10020 www.lowenstein.com 973 597 2500 212 262 6700 Lowenstein Sandler PC

If you would like to discuss the issues addressed in this article, please contact David M. Wissert, at 973 597 2560 or by email, dwissert@lowenstein.com, or Gina M. Sarracino at 973 597 2540

• r by email, gsarracino@lowenstein.com.

If you have any further questions about the issue discussed in this Alert, as to whether any of your policies and procedures should be examined as a result of this decision, or about any

• ther employment practices or compli-

ance issues, please do not hesitate to contact David M. Wissert, a member of the Firm and Chair of the Employment Litigation Practice Group,

• r Gina M. Sarracino, an associate of

the Firm and a member of the Employment Litigation Practice Group, at (973) 597-2500. You may also wish to obtain a copy of

• ur newly published book, A Practical

Guide to Federal and New Jersey Employment Law: The Employer’s

• Resource. This Guidebook, published

in connection with the New Jersey Business and Industry Association, is the resource for New Jersey employers seeking to comply with federal and New Jersey laws, regulations and pro- cedures in the employment-related

• area. It provides management with

information concerning existing laws, emerging trends, most frequently asked questions and practical tips

• n managing the workforce and

workplace.