The Retaliation Dilemma

One of the many challenges faced by Minnesota employers is dealing with employees who remain on the payroll after they’ve filed claims of discrimination, sexual harassment, or other corporate misdeeds. Title VII of the 1964 Civil Rights Act protects these employees against retaliation for their actions, even if their initial claims prove unwarranted. It’s not unusual for organizations to successfully defend themselves against a discrimination suit, for instance, and then lose out later when someone files a claim of retaliation.

That creates a difficult balancing act for managers who feel they need to tiptoe around complaining employees to avoid retaliation lawsuits, yet are wary of giving them preferential treatment. It’s a dilemma that has grown more acute in light of a landmark U.S. Supreme Court decision that gives courts even more latitude in how they define retaliatory actions. Most employment law attorneys believe the June 2006 ruling in Burlington Northern & Santa Fe Railway v. White will result in a surge of new allegations of workplace retaliation.

A New Standard

Prior to the high court’s June decision, many circuit courts said retaliation required the existence of “adverse employment action,” which is typically defined by acts with pocketbook implications such as termination, denying promotion, a reduction in pay, and transferring employees to less desirable positions. The White decision expands the definition’s boundaries to include “materially adverse” employer actions that would deter a reasonable employee from making a claim had they known the action that would be taken against them when they complained. The ruling also takes into consideration retaliatory acts beyond the workplace, such as providing poor references to potential employers of a complainant.

The upshot is that actions that aren’t measured in dollars are now more likely to be considered retaliation: changing work hours or schedules; changing job duties, even if those duties are still in an original job description; moving people to different offices; excluding people from certain company events, and more. For example, a refusal by a supervisor to ask a subordinate to a weekly training lunch that might advance the employee’s career could potentially be ruled a “materially adverse” action. The high court did say, however, that the decision isn’t designed to be a general civility code and that “petty slights and annoyances” won’t qualify as retaliation.

“The Supreme Court decision says context matters and that retaliation cases will be judged more on a case-by-case basis,” says Robert Boisvert, a shareholder in the employment and labor law group of the Fredrikson & Byron law firm in Minneapolis. “It makes it more dangerous for employers, under federal and state law, to brush off complaints, and makes it harder for defense lawyers to get cases thrown out on summary judgment, because courts will be inclined to let them go to trial to sort out all the facts.”