The Retaliation Dilemma

William Egan, a partner specializing in employment law with Oppenheimer Wolff and Donnelly, a law firm in Minneapolis, believes the decision will open the door to more retaliation claims, a type of lawsuit that already had been on the rise. According to data from the U.S. Equal Employment Opportunity Commission, the number of retaliation claims filed under Title VII nearly doubled from 1992 to 2004, reflecting the greater odds of plaintiffs prevailing in these lawsuits compared to discrimination claims.

Egan says the high-court decision also creates new latitude in the “reasonable person” standard. For example, a mother with school-age children who has filed a discrimination complaint might find changing her work schedule unreasonable and a form of retaliation, while an unmarried employee without such family obligations could find it more reasonable.

Minnesota Perspective

The Supreme Court’s decision already has played a role in a handful of Minnesota court cases, says Dayle Nolan, a shareholder in the employment and labor group with Larkin Hoffman law firm in Minneapolis. In the September 2006 federal court case of Devin v. Schwan’s Home Service, Inc., a Schwan’s delivery employee made three separate claims of retaliation after filing a discrimination suit. One of the employee’s retaliation claims was based on a number of incidents, such as being cited by a manager for not filling out daily client-contact postcards and for a meeting with a supervisor she perceived to be a performance review, but which managers say was meant to address the issues they had with her. While plaintiff’s attorneys cited these actions as “materially adverse,” the court ruled for Schwan’s, saying all claims fell within the category of “trivial harm.”

The case offers a glimpse of what’s to come, attorneys say, as more plaintiffs’ attorneys test the waters on the heels of the high-court decision. “We will see more and more retaliation cases in Minnesota dealing with the difference between what is trivial harm versus materially adverse action,” says Mark Pihart, an employment law attorney with Winthrop and Weinstine, a law firm in Minneapolis.

The ruling also affects a host of state statutes dealing with retaliation, including the Minnesota Human Rights Act (which parallels Title VII); the state Whistleblower Act, which protects employees from being discharged if they report a violation of federal or state law in good faith; the Minnesota Parental Leave Act, which prevents retaliation against those who request unpaid leave; and state OSHA laws that protect employees from performing job duties they consider hazardous.

Nolan cites a recent retaliation claim in Arizona regarding the Family and Medical Leave Act (FMLA) as an example of the type of case Minnesota courts may be seeing more of in the future. In that case, the court held that placing an employee on paid administrative leave as a result of her request for FMLA leave constituted an adverse action. Although the employee suffered no economic loss, “because she wasn’t allowed to come into the workplace, didn’t have contact with coworkers, and cited the loss of experience and education that comes with performing job duties, the court ruled in her favor,” Nolan says.