United States: U.S. Supreme Court´s Ruling Expands the Definition of Bias Retaliation

In its recent decision in Burlington North and Santa Fe Railroad Company v. White, the U.S. Supreme Court held that the definition of prohibited "retaliation" under Title VII of the Civil Rights Act, which prohibits retaliation against those who complain about race, color, religion, sex, or national origin discrimination or harassment, includes any acts that are "materially adverse" to a "reasonable employee," even if the acts do not result in loss of pay, benefits or work privileges. In fact, the Supreme Court stated that an act of unlawful retaliation is not even necessarily limited to the employer’s workplace. A bad job reference or spreading a rumor about an employee in the community could theoretically be considered an act of unlawful retaliation.

Prior to this holding, most federal courts (and state courts interpreting state anti-retaliation laws) held that for an act to be considered retaliatory, it had to have a "tangible" impact on the affected employee’s employment. Tangible was defined as affecting a material term of employment, such as a discharge, a demotion, a denial of a bonus, a denial of a promotion or a change in compensation. On the other hand, actions that only had a potential or attenuated impact on a term of employment, such as a bad evaluation, a failure to train or a failure to invite an employee to business meetings, were not considered tangible. Generally, they were not sufficient, either individually or collectively, to support a retaliation claim.

The Supreme Court has obliterated the distinction between "tangible" and "intangible" acts when it comes to the law of retaliation. Following the ruling in Burlington, actionable conduct is any conduct that would have deterred the employee from bringing a complaint had the employee known alleged retaliatory action would follow. Moreover, while the Supreme Court said that courts must analyze such claims under the objective reasonable employee standard of whether the alleged act of retaliation would deter a reasonable employee from making the complaint, the court also held that trial courts must look at the context surrounding the complained-of conduct.

In an effort to clarify its ruling, the Supreme Court gave the following example of context: an employee who brought a discrimination complaint might not have been deterred from doing so if he or she knew it would result in a shift change (with no impact on compensation), but the employee probably would have been deterred if the shift change impacted child-care issues. Reduced to its essence, the inclusion of context leaves an open door to more subjective evaluations of whether an alleged act of retaliation constitutes a "materially adverse" act.

In this new legal landscape, if an employee complains about discrimination or harassment, an employer must be concerned that almost any "negative" act that follows the complaint may lead to a lawsuit. Bad evaluations, exclusions from meetings, negative comments, changed job assignments and other actions that may deter an employee from complaining all have the potential for litigation. Although one could argue that employees might not bring lawsuits based on such matters because they have no actual damages, the fact that most federal and local anti-discrimination laws allow for compensatory damages (including for emotional distress), punitive damages and attorneys’ fees, provides incentives for employees and plaintiffs’ employment lawyers to pursue these claims. In the wake of Burlington, it appears the potential for increased litigation over what most would consider minor day-to-day employment decisions is almost limitless.

In view of the Burlington decision, employers must carefully monitor how employees who have complained of discrimination or harassment are treated following the complaint. However, courts will still look at timing to determine if a retaliation claim has any possible merit, which means that close monitoring of actions involving an employee does not need to go on endlessly. Courts generally find no causal connection if the alleged retaliation occurred more than a year after the complaint. It will be less risky to take legitimate adverse actions against a complaining employee more than a year after the complaint.

Despite its impact, the Burlington decision does not mean that employees who bring discrimination or harassment claims should be considered "bullet proof" after filing their claims. However, it does mean that even small day-to-day decisions affecting the complainant should be monitored to ensure they can be supported by the evidence. Employers, particularly human resource personnel, should closely examine whether supervisors’ dealings with complaining employees exhibit a different pattern post-complaint than pre-complaint. They should also remind supervisors who are the subject of a complaint—in writing—that retaliation is against the law and the company’s policy.

The Burlington decision does not change the law as it pertains to claims of discrimination. The tangible employment act standard still applies to claims of discrimination. An employee will not have a valid cause of action when claiming a bad evaluation due to race discrimination, but the employee may have a valid cause of action when reporting a bad evaluation because of complaints of race discrimination.

The Burlington decision does not change the law as it pertains to claims of harassment, which focuses on a different analysis of the employee’s subjection to severe and pervasive unwelcome conduct (based on the employee’s protected trait) that impacts the terms and conditions of the employee’s employment. However, in this new legal environment it is important not to provide employees who have meritless discrimination claims with valid retaliation claims by subjecting them to different treatment following the complaint.

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