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Retaliation in the Workplace

VIEWS: 2 PAGES: 44

									Burlington Northern & Santa Fe Railroad
  v. White: Opening the Floodgates for
      Employee Retaliation Lawsuits

            C. W. Von Bergen
                      &
          William (Will) T. Mawer

 Southeastern Oklahoma State University
    What is Retaliation?


Retaliation has been defined
 as an “action taken in return
   for an injury or offense.”
Congress Issued Retaliation Ban
       As Part of CRA

 So that employers couldn’t simply frighten
 workers out of their constitutional right to
 complain: Fire one whiner, and the rest will
 shut up.
  Retaliation occurs when three
          things happen

1) The employee engages in a protected
   activity.
2) The employer takes an “adverse
   employment action” against an
   employee.
3) There is a connection between the
   adverse employment action and the
   protected activity.
   What is Retaliation? (cont.)
“Protected activities” include:
1. Voicing a concern about workplace behavior that the
    employee believes to be illegal, unethical, or unsafe
2. Reporting or filing a formal complaint involving illegal,
    unethical, or unsafe behavior
3. Refusing to participate in something that is illegal,
    unethical, or unsafe
4. Cooperating with an investigation into a complaint
5. Being a witness in a court case involving illegal,
    unethical, or unsafe workplace conduct.
        Retaliation Looks Like
Adverse employment actions can include (but are
  not limited to):
 Firing
 Demotions/denial of promotions
 Docked pay
 Poor performance reviews
 Putting an employee under surveillance
 Written/verbal warnings and reprimands
 Shunning or ostracizing
 Verbal/non-verbal hostility
Why Organizations Should Care
Annual retaliation
 claims filed with
 the EEOC are
 significant
                EEOC Charge Statistics
                 for a 10-Year Period
90,000

80,000

70,000

60,000

50,000
                                                             Total Charges
40,000                                                       Retaliation - All Statutes
                                                             Retaliation - Title VII only
30,000

20,000

10,000

    0
          FY   FY   FY   FY   FY   FY   FY   FY   FY   FY
         1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Why Organizations Should Care
                   (cont.)




For the past decade, retaliation has been
 the fastest growing form of discrimination
 claim made to the EEOC.
Retaliation is rapidly becoming the most
 common form of discrimination reported to
 EEOC.
Why Organizations Should Care
                  (cont.)


Retaliation claims
 resolved by the
 EEOC in 2004
 resulted in excess
 of $90 million in
 fines and fees
 being levied
 against employers.
Why Organizations Should Care
                    (cont.)


Employers lose retaliation complaints far
 more often than other discrimination
 complaints
Retaliation claims can survive the original
 discrimination complaint.
Why Organizations Should Care
                     (cont.)


An organization that develops a reputation
 for permitting retaliation will fail to attract
 and retain good employees.
Claims of retaliation—even if they prove to
 be unfounded—can result in significant
 disruption and loss of productivity in the
 workplace.
            Retaliation?
But what if the retaliation takes the form of
something less than being fired, demoted,
or docked? What if a person complains
about discrimination and then are put into
a less-desirable job at the same rate of
pay? This is the crux of a landmark case
regarding retaliation.
Why Organizations Should Care
                (cont.)




A recent Supreme Court decision has
made it significantly easier for an
employee to prove s/he is a victim of
unlawful retaliation.
        Recent Court Case

Burlington Northern & Santa Fe Railroad Co.
 v. White, 2006 WL 1698953 (U.S. Sup. Ct.
               June 23, 2006).
 Prior to Burlington Northern &
  Santa Fe Railroad v. White
Prior to the White decision many lower
courts applied a narrower interpretation of
what they considered retaliatory, looking
for actions such as termination or being
passed over for a job.
             Facts of White
• Sheila White hired as Track Laborer
  (encompassed many activities; she operated
  forklift—desirable activity)
• Complained to company that she was sexually
  harassed by her supervisor; supervisor
  disciplined
• Management reassigned her to other Track
  Laborer more strenuous duties—clearing trash
  and brush from tracks (no change in wages,
  benefits, or job title)
• Filed sex discrimination and retaliation claim
  with EEOC
           Facts of White (cont’d)

• White and another supervisor had a disagreement
  and she was charged with insubordination
• Suspended w/o pay for 37 days while the
  company investigated insubordination incident;
  she was exonerated and awarded back pay
• Reinstated her to reassigned job tasks as a Track
  Laborer duties—clearing trash and brush from
  tracks (no change in wages, benefits, or job title)
• White sued but company said the reassignment
  and suspension were not retaliatory
  Burlington Northern Argued
• White’s reassignment to clearing brush
  was within the job description
• 37-day suspension followed grievance
  procedure with union

Neither of above constituted retaliation since
        no job title, wages, or benefits
                were affected
The Court disagreed and found that
 Employer conduct in or out of the workplace
     can be considered retaliatory if it is

 • materially adverse within the context of an
   individual worker so as to discourage
 • a reasonable employee from filing a claim,
 • whether the initial discriminatory complaint
   was valid or not.
           Justice Breyer
• “We phrased the standard in general
  terms….”

                  Because

• “…the significance of any given act of
  retaliation will often depend upon the
  particular circumstances…” and that
  “context is important.”
Burlington Northern & Santa Fe
       Railroad v. White

This new standard established by the
Court makes avoiding retaliation claims
more difficult for employers because there
appears to be increased latitude in which
employer actions can be construed as
being retaliatory.
Some actions that have been found to rise
to the level of a possible retaliation claim

• Bringing an employee in for questioning after learning
  they made a claim of discrimination.
• Denial of promotion.
• Transferring an employee to another location or position.
• Changing an employee’s actual job duties, even if the
  duties are still in the employee’s original job description.
• Increasing "monitoring" of an employee’s performance or
  activities.
• Filing criminal charges against the employee.
• Giving poor references for the employee, including telling
  prospective employers that the employee filed a claim for
  discrimination.
Some actions that have been found to rise to
the level of a possible retaliation claim (cont)

• Changing an employee’s schedule when change
  materially affects the employee.
• Excluding an employee from meetings or training
  lunches.
• Granting leave, paid or unpaid.
• Denying a pay increase.
• Suspension without pay.
• Denying previously approved paid time off.
• Co-worker retaliation or hostility, if severe, and if
  condoned by the employer.
• Filing a lawsuit against the employee or a counterclaim
  in a lawsuit brought by the employee.
   Why Organizations Should Care
                          (cont.)

White decision establishes a fact-sensitive
standard for evaluating retaliation claims. Even when
a plaintiff’s claim appears to lack merit, a jury will
likely be charged with making the factual determination
of whether an employer’s actions would be considered
materially adverse to a reasonable employee.

Therefore, the employer’s cost of defending retaliation
claims is likely to increase as more cases will either
go to trial or settle as opposed to summary judgment
holding.
  Walking on Eggshells

  Employer’s fear may lead to the
    disgruntled employee actually
 receiving more favorable treatment
than s/he would have gotten had he
        not made a complaint.
Opening the floodgates?
   What Can You Do to Prevent
          Retaliation?
Know what it
 looks like
Take specific
 actions to avoid
 it
  Preventing Retaliation:
Know What It Looks Like (cont.)
         Definition of Adverse
         Employment Action:
Any action that a reasonable employee
would believe materially affects the terms,
conditions or privileges of employment.
    Preventing Retaliation:
  Know What It Looks Like (cont.)
Connection between protected activity and
 adverse employment action based on
 time.
Employer articulates reason for adverse
 action.
Employee must prove reason is pretext for
 retaliation.
     Preventing Retaliation:
   Know What It Looks Like (cont.)
 Employee voices
  concern (protected
  activity)
 Employee is shunned
  (adverse employment
  action)
 Employee could be
  considered a victim of
  retaliation
  What Can You Do to Prevent
         Retaliation?
Know what it
 looks like
Take specific
 actions to
 avoid it
  Preventing Retaliation: Take
  Specific Actions to Avoid It
Action #1:
 Take ALL reports of illegal,
 unethical or unsafe behavior
 seriously.
  Preventing Retaliation: Take
 Specific Actions to Avoid It (cont.)
Action #2
 Treat everyone consistently,
 fairly, respectfully and “by
 the book.”
  Preventing Retaliation: Take
 Specific Actions to Avoid It (cont.)
Action #3
 Make sure your actions
 don’t create the “perception”
 of retaliation.
  Preventing Retaliation: Take
 Specific Actions to Avoid It (cont.)
Action #3 (cont.):
 Employee with
  discipline issue
 Employee involved in
  investigation
 You take disciplinary
  action
 Creates appearance
  of retaliation
  Preventing Retaliation: Take
 Specific Actions to Avoid It (cont.)
Action #4:

 Keep accurate and appropriate
 documentation.
  Preventing Retaliation: Take
 Specific Actions to Avoid It (cont.)
The 4 Key Actions – A Review
Take ALL reports of illegal, unethical or
 unsafe behavior seriously
Treat everyone consistently, fairly,
 respectfully and “by the book”
Make sure your actions don’t create the
 “perception” of retaliation
Keep accurate and appropriate
 documentation
 Preventing Retaliation
Organizations should review
 their policies and procedures
Provide training to appropriate
 managerial personnel
Read the following article
    What is Retaliation? (cont.)
It is illegal to
   retaliate against
   an employee
   who has
   engaged in a
   “protected
   activity.”
CRA forbids employer from (cont.)
Discriminating against an employee …
because the individual opposes any
practice made unlawful by Title VII or
made a charge, testified, assisted, or
participated in a proceeding or
investigation, or hearing under this Act.*

*42 U.S.C. § 2000e-2(a) (2004, June)
              The Court said:
“We conclude that the anti-retaliation provision does
not confine the actions and harms it forbids to those
that are related to employment or occur at the
workplace. We also conclude that the provision covers
those (and only those) employer actions that would
have been materially adverse to a reasonable
employee or job applicant. In the present context that
means that the employer's actions must be harmful to
the point that they could well dissuade a reasonable
worker from making or supporting a charge of
discrimination.”

								
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