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The United States
Supreme Court issued a decision last week regarding retaliation claims
that employers should carefully review.
In Burlington
Northern & Santa Fe Railway Company v. White, the plaintiff made an
internal company complaint about sexual harassment. That internal
complaint was “protected activity” and therefore Title VII of the Civil
Rights Act of 1964 prohibited retaliation against her. The employee
sued, alleging retaliation because shortly after making the internal
complaint, she was suspended for 37 days, and, when she was allowed to
return, she was put into a lower job which involved harder and dirtier
work. The employer ultimately reversed the suspension, restored her job
and paid her the wages lost during the suspension, so it argued that she
had not been harmed, and urged dismissal of the retaliation claim. The
Supreme Court held that the suspension and job change were sufficient to
sustain a retaliation claim, even though they were later rescinded by
the employer. It explained that an employee who engages in protected
activity under Title VII can base a claim for retaliation on any
“materially adverse” action. The Court declined to draw any bright line
standard, indicating that a retaliation claim can be based on any
activity that would be likely to deter a reasonable employee from
complaining about conduct made unlawful by Title VII. The Court
indicated that the materiality of the alleged retaliatory act must be
evaluated in the overall context of the particular circumstances. Prior
to this case, many courts had dismissed retaliation claims based on
anything less than a substantial adverse change in pay, job status or
other significant terms and conditions of employment.
In light of this
decision, prudent employers should consider the following proactive
steps:
-
Policies should be reviewed to ensure that language
prohibiting retaliation is broad enough and strong enough.
-
Managers should be educated about the need to
carefully evaluate discipline or other negative actions against an
employee who has engaged in “protected activity” under one of these
statutes.
- Human
Resources should consider whether it is practical to implement a
“follow up” policy, under which HR checks on the status of employees
who have utilized the Company’s internal complaint procedure, to
ensure that no retaliation has occurred.
For questions
regarding this alert or other employment law issues, please contact
Susie Gibbons at
sgibbons@poynerspruill.com or (919) 783-2813. |
