ALP: Retaliation Claims

August 2007

An employee complained about discrimination and her supervisor wants to transfer her to the night shift.  If she is transferred, without loss of pay, would she have a claim?

Probably.  The U.S. Supreme Court, in Burlington Northern and Santa Fe Railroad Co. v. White, recently expanded the scope of Title VII’s anti-retaliation protection by rejecting the position that basically limited retaliation claims to actions that had a monetary impact (e.g., terminations, demotions, or pay reductions).  Under the Court’s new objective “reasonable employee” test, the employee must show the challenged action would have been materially adverse to a reasonable employee or job applicant.  To be materially adverse, the employer’s actions must be so harmful that they could well have dissuaded a reasonable worker from making or supporting a charge of discrimination.  The actions do not necessarily have to involve money.

There is no bright-line guide to retaliatory conduct.  All alleged retaliation acts will be evaluated on a case-by-case basis.  The Court, however, gave two examples of behavior that could be deemed “materially adverse.”  First, a change in schedule may be “materially adverse” to a young mother with school-aged children.  Second, a refusal to include an employee in luncheons could constitute retaliation if they involved work-related training.

This broader standard makes it significantly easier for employees to argue they suffered retaliation after accusing employers of discrimination.  Yet, there is hope.  In White, the Court stated its new test did not mean employees are immunized from lack of manners, petty slights, or minor annoyances.  Unfortunately, imagination has no boundaries.  Since White, courts have addressed numerous allegations of retaliatory conduct, from the very real to the very ridiculous.  Generally speaking, they appear reluctant to base a claim on conduct that does not materially affect a person’s title, duties, or pay.

That being said, employers should train their supervisors about the new “retaliation” standard.  Be very leery if a supervisor (usually in the heat of the moment) suddenly wants to take any negative action, no matter how slight, toward an employee who just complained about discrimination or harassment.  Ask why.  If there is not a legitimate and objective reason for the action, just say no.