Workplace Articles By BCC
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Media Headlines:
Retaliation Nation: A Recent US Supreme Court Ruling Will Stir Up a New Wave of Retaliation Claims
California Supreme Court Expands Liability for Retaliation
Court Boosts Retaliation Claims; Spike in Filings Expected
Supreme Court Ruling Will Certainly Encourage a Greater Number of Disgruntled Employees to Consider Retaliation Claims
Supreme Court Ruling is Guaranteed to Generate More Litigation
Introduction
Based on several court cases, including one decided by the US Supreme Court on June 22, 2006, many organizations are experiencing increased concern about the issue of retaliation. The headlines in several HR trade magazines and legal newsletters emphasize the vulnerability employers have and predict an increase in retaliation claims. Clearly, it is prudent for employers to make every effort to minimize or eliminate the risk.
This article reviews background information on several key cases and provides guidelines on preventing and effectively resolving retaliation complaints.
Defining Retaliation
The review of case law reveals the analysis and interpretation of what constitutes unlawful retaliation vary.
The US Supreme Court heard Burlington Northern &Santa Fe Railway Co. v. White, No 05-259, which was argued on April 17, 2006 and decided on June 22, 2006. Below is background information (Excerpts courtesy of HR Magazine, SHRM).
Title VII prohibits an employer from discriminating against an employee because he or she has opposed an employment practice declared unlawful by Title VII or because he or she “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. The statute does not define the term “discriminate against,” but courts have interpreted it to mean that plaintiffs must show they were subjected to an “adverse employment action.”
Federal courts and the federal enforcement agency, the Equal Employment Opportunity Commission (EEOC) have interpreted the phrase “adverse employment action” in differing ways. Some courts hold that to be actionable, the “adverse employment action” must be an “ultimate employment decision,” such as hiring, granting leave, discharging, promoting or compensating.
The EEOC and other courts have taken a more lenient approach saying retaliation claims to be “any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity.” [Emphasis added by the authors.] The 6th Circuit used another standard. It took a fact-specific and case-specific approach, "describing the kinds of material employment actions that rise above the level of trivial” and looking to “indices that might be unique to a particular situation.”