By Deborah Casey Brown
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers on the basis of certain characteristics, including race, sex, and national origin. The statute also provides for retaliation claims if an employee complains of illegal discrimination and is subsequently punished for making the complaint.
Prior to June 2006, employees in many parts of the country, including this geographic area, had to show some type of ultimate employment decision, such as being fired or being demoted, in order to prove a claim for retaliation. On June 22, 2006, the United States Supreme Court set a much broader test for retaliation. In Burlington Northern & Santa Fe Railway Co. vs. White, the Court held that any action that materially injures or harms any employee who has complained of discrimination and "might have dissuaded a reasonable worker from making or supporting a charge of discrimination" can constitute actionable retaliation.
The Court did not specifically indicate what constitutes actionable conduct. Rather, it indicated that would be determined on a case-by-case basis. In Burlington Northern the plaintiff was transferred to less desirable job duties and was suspended without pay for a period of time. Burlington Northern contended there was no retaliation because her duties, both before and after reassignment, fell within the same job description.
The evidence showed that the duties to which she was reassigned were considered harder, dirtier, and less prestigious; therefore, the Court found that a jury could easily find that the reassignment was retaliatory.
Justice Breyer, writing for the Court, emphasized the importance of separating "significant from trivial harms". He stated that "ordinary trivializations of the workplace" are generally not actionable. Example of "ordinary" trivializations set forth in the opinion included personality conflicts, snapping, gender-related jokes, teasing, and "sporadic" abusive language.
The practical effect of Court's opinion is that most retaliation claims will now need to be decided by a jury. Under the previous standard, many retaliation claims were thrown out of court prior to trial by judicial rulings on defense motions. As a result of this ruling, employers should educate supervisors and managers about this new standard to help ensure that employees who have made claims of discrimination are not treated in a manner that could be considered retaliatory.
Deborah Casey Brown, a Partner at GWB, is a certified Employment and Labor Law specialist. For more information, visit www.gwblawfirm.com or call Gallivan, White & Boyd, P.A. at (864) 271-9580.
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