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High Court May Clarify Standard For Retaliation

March 29, 2006
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Employees who file a discrimination complaint and are fired or have their pay reduced can make a strong case showing for illegal retaliation. When the reaction is more subtle--involving an employee being moved to a less prestigious job or being excluded from meetings--courts differ on whether the push back is unlawful.

This spring, the Supreme Court will have a chance to more clearly define retaliation. The court is scheduled to hear a case in April involving Sheila White, an employee of Burlington Northern & Santa Fe Railway Co. who alleges that the company tried to squelch her sexual harassment complaint by taking away her forklift job and assigning her to a new position.

The company didn’t reduce her wages. It did suspend her without pay following White’s second complaint to the Equal Employment Opportunity Commission, but later reinstated her with back pay.

A jury ruled in White’s favor, and the 6th Circuit Court of Appeals in Cincinnati upheld the verdict. Burlington Northern is appealing to the Supreme Court because it argues that the standard for retaliation was set too low.

The issue splits circuit courts. Some side with the EEOC in maintaining that retaliation can constitute any adverse action that may deter someone from filing a complaint. Others have hewed to a standard that says that retaliation must involve a decision to change pay, benefits or employment status.

Lawyers for employers are leery of wide parameters. "It will open the floodgates to retaliation claims," says Glenn Patton, a partner at Alston & Bird in Atlanta. He argues that a looser interpretation could encourage employees to turn perceived slights into lawsuits.

If the Supreme Court endorses the definition of retaliation in the Burlington case, companies will have to take a more nuanced approach.

"HR professionals and management would need some additional training on how to recognize more subtle forms of retaliation instead of the more obvious, like a demotion or reduction in pay," says Dede Wilburn Church, a senior consultant at Employment Practices Solutions. "They would need to look much more closely for things like employee ostracization and general hostility toward the complaining employee."

The ramifications of the case may go beyond Title VII discrimination suits. Wider latitude in defining retaliation might also apply to age, disability and actions that fall under the Family and Medical Leave Act. "It means that a person who complains under those laws would be protected from all forms of retaliation," Church says.

The case could be a touchstone for the Supreme Court’s political direction now that Justice Samuel Alito Jr. has replaced retired Justice Sandra Day O’Connor, who was usually a swing vote.

In another case before the Supreme Court, employees allege that a company conspired to hire illegal immigrants to depress wages. A third employment law case on the docket involves an insurance company that is seeking reimbursement for medical expenses it paid to injured plan participants who later won a hefty civil damages suit against a third party.

--Mark Schoeff Jr.

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