Wider Bases for Retaliation Claims, but Not Better Chances for Plaintiffs to Win

Two recent U.S. Supreme Court decisions, Gomez-Perez v. Potter and CBOCS West, Inc., v. Humphries, have now affirmed an additional way for employees to file suit for job retaliation based on a prior claim of discrimination. As the court held, the statutory protection of “equal contract rights” allows employees to pursue retaliation claims under a relatively little-known civil rights law enacted just after the Civil War (42 U.S.C. § 1981).

However, the court’s decisions are not entirely bad for employers and business owners. While the decisions endorse an additional means to sue an employer, the decisions do not change the burden of proof needed for an employee to prevail on a retaliation claim. Thus, an employer is likely to be able to defeat a retaliation claim under the “equal contract rights” provisions of 42 U.S.C. § 1981 using the same defenses available for a claim under Title VII of the Civil Rights Act of 1964, or similar state anti-discrimination laws.

The legal definition of retaliation

Another decision,Burlington Northern & Santa Fe Railways Co. v. White also addressed the burden of proof for a retaliation claim. In that case, the Supreme Court held that an employee must prove he or she suffered from a “materially adverse” employment decision as a consequence of complaining about alleged discriminatory conduct. To meet this standard, an employee must show that the decision might have “dissuaded a reasonable worker from making or supporting a charge of discrimination” against the employer, according to the court. In other words, the act of retaliation must be severe enough that it would have a chilling effect on other employees, and make them think twice about challenging unlawful conduct.

As a practical matter, not every adverse action taken against an employee constitutes retaliation. The Supreme Court has expressly held that claims for retaliation require a “significant” rather than “trivial” harm to an employee. As the court stated, the prohibition against retaliation “does not set forth a general civility code for the American Workplace.” Thus, an employee’s decision to report potentially discriminatory behavior “cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”

Context is important
    The Supreme Court’s ruling on what might constitute retaliation speaks in general terms, rather than delineating specific prohibited acts. As the court noted, an “act that would be immaterial in some situations is material in others.”

For example, the court explained that “a schedule change may make little difference to many workers, but may matter enormously to a young mother with school-age children. Likewise, a supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable, petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”

Practical tips for avoiding or defeating retaliation claims
    Although the Supreme Court’s decision may ease the way for employees to file more claims based on a wider array of employers’ actions, the new decision did not narrow many of the defenses available to employers. Still, according to the court, the standard for judging the merits of a retaliation claim “must be objective” in order to be “judicially administrable.” This means that retaliation claims are still subject to summary judgment or other pretrial disposition.

While workers will likely focus their retaliation claims on the action taken against them, employers can defend themselves by showing that there was no causal connection between the worker’s complaint and the challenged action. Here are some recommended steps to be taken:

• Be able to show that the action in question resulted from a decision wholly unrelated to the worker’s prior complaint. For example, documentation that the challenged decision was made before the worker’s complaint is extremely helpful. Retaliation claims necessarily require a subsequent response to a prior complaint of unlawful conduct. If an employer can show that it made its decision affecting the employee before the employee raised a complaint, there should be no viable retaliation claim.

  
  

• Be able to show that the challenged decision affected other employees who did not complain. For example, if an employer has a business need to eliminate all of its night-shift employees, a worker who previously complained about discrimination may not have a viable retaliation claim if he or she was treated the same as the other night-shift employees who also lost their jobs.

  
  

• Be able to show that the decision-maker for the challenged action was never aware of the employee’s complaint. For example, if an employee complains about discrimination to one manager, it may not be retaliation if another manager, who was wholly unaware of the employee’s complaint, assigns the employee to a less-desirable job task. For this defense to be available, an employer should be able to show that the employee’s complaint was held in confidence and not communicated to others.

  
  

• Be able to substitute an independent decision-maker if the original decision-maker is aware of the employee’s complaint. For example, if an employee complains about discrimination perpetrated by her direct supervisor, the supervisor should not be involved in deciding the employee’s bonus a month later. Under these circumstances, it would be better for the employer to have a different decision-maker decide the employee’s bonus level, particularly a decision-maker who has no relationship to the subject of the employee’s complaint.

  
  

• Be able to show a legitimate business reason why the decision necessarily applied to the employee who raised a complaint, as opposed to other workers. As an example, the company should be able to show that a decision was the result of a corporate policy providing that job assignments are based on seniority or level of experience. These reasons often justify why one worker is selected over another. If an employer has existing policies for making particular decisions, it ordinarily should not be retaliation if the employer follows those policies.

  
  

• Be able to offer the employee some input when implementing the challenged action. If there are multiple options available for a worker who previously raised a complaint, ask the worker which option is most preferable. For example, if business conditions require the employer to change an employee’s work hours, or assign different duties to the employee during current work hours, ask the employee to choose. Even if both options are not appealing to the employee, it is still helpful to allow the employee to choose the “lesser evil,” provided the employer can show there are no other options available.

  
  

• Be able to show the business need to implement the challenged action against the employee at the particular time the action is taken. If business reasons require an employer to implement an adverse decision soon after an employee raised a complaint, be sure that there are genuine reasons why the decision had to take place at that time. For example, if an employee is assigned to work on an undesirable project a week after complaining about discrimination, be able to show that the undesirable project was the result of an unanticipated emergency requiring the unique job skills of the employee who complained. On the other hand, if there is a way to delay an adverse decision, consider delaying your action. The proximity in time between a worker’s complaint and the subsequent action taken by the employer is often a factor.

  
  

• Be able to show that your company has a policy and an internal procedure for complaints and investigations of discrimination and harassment, and that it communicates this process to employees. Be sure that policy explicitly states that there will be no retaliation for raising concerns about potential discrimination or harassment. This policy should be strictly enforced, without exception, as part of your company’s culture.