In a recent U. S. Supreme Court ruling that may have far reaching implications in future litigation, the scope of
retaliation claims has been expanded. The Court explained that the anti retaliation provisions in Title VII protects
an employee from actions that produce an “injury or harm” to the employee and that an employee must show that
a “reasonable employee” would have found the employer action to have a “materially adverse” affect on their
employment- which in this context means that it might have discouraged or dissuaded a reasonable worker from
making or supporting a charge of discrimination.
In the case before the Court, the only woman in a Maintenance Department for the Burlington Northern & Santa
Fe Railway was assigned to operate a forklift and perform other maintenance duties. The employee thereafter
asserted a complaint that her immediate supervisor repeatedly told her that women should not be working in the
department and had made insulting and inappropriate remarks to her in front of her male colleagues. After an
investigation, the Company suspended the supervisor. The complaining employee was then transferred, her forklift
duties were taken away from her and she was advised to only perform maintenance tasks.
A few days later, the employee was suspended without pay indefinitely for “insubordination” following a
disagreement between her and one of her supervisors. After completing an investigation, the Company concluded
that there had been no insubordinate conduct and the employee was reinstated with back pay for the 37 day
suspension.
The employee then sued under Title VII for unlawful retaliation. The Court considered two incidents of possible
retaliation -- the job transfer and the unpaid suspension and found that both actions constitute actionable retaliation
under Title VII.
A reasonable employee facing the choice between keeping quiet to retain their job or file a discrimination complaint
is likely to choose the former, which is exactly the choice that the anti-retaliation provision in Title VII is meant
to protect against. A change in job duties or an indefinite suspension without pay could well act as such a deterrent.
The Court held that the actions taken by the Railroad amounted to retaliation even though the suspended employee
was reinstated to her original position and received back-pay.
What Should You Do?
Inform supervisors any time a complaint, report, claim, charge or allegation of discrimination,
harassment or workplace injury occurs.
Supervisors and managers should be cautioned not to take any action that could possibly be adverse
against the complaining employee.
Review your non-discrimination policies and ensure all managers are trained to ensure proper non
discriminatory personnel actions.
Conduct, prompt and thorough investigations and take immediate corrective action consistent with
the findings prior to taking adverse action against an employee.
Do not retaliate against employees who seek to enforce their rights under any law, including Title
VII and FEHA.
