Nevada Litigation Blog

Employment Retaliation Standards Set By United States Supreme Court

Written by: Edgar Carranza

For years employers have debated the extent to which one can rightfully make personnel decisions that affect an employee who has previously been engaged in some protected activity without it being deemed employment retaliation. In Burlington Northern & Santa Fe Railway, Co. v. White, 126 S.Ct. 2405, 548 U.S. ___ (2006), the United States Supreme Court has attempted to clarify the issue and provide some guidance to employers and practitioners alike by setting a “reasonable employee” standard.

In Burlington, the female employee plaintiff worked as a track laborer for defendant. Her position involved manual labor, primarily consisting of operating a forklift. Plaintiff complained to officials in September 1997 that her immediate supervisor repeatedly told her that women should not be working in the railroad’s Maintenance of Way department and other inappropriate remarks. The supervisor was disciplined as a result of the complaint. Later that month, plaintiff’s forklift duties were removed based on alleged seniority reasons. As a result, she was assigned to perform more laborious and basic track laborer functions.

In October 1997, plaintiff filed a charge of discrimination with the EEOC alleging gender discrimination and retaliation. A few days after notice of the charge was sent to the employer, plaintiff was suspended without pay for alleged insubordination. She later filed an additional charge for retaliation based on the disciplinary suspension.

An internal investigation eventually returned plaintiff to her former position, with the former duties, and back pay. Nonetheless, the lawsuit was initiated. At the time of the lawsuit, there was a split between the different circuit courts regarding what would constitute retaliation. Some circuits allowed a more liberal standard that any conduct which affected the general terms and conditions of employment would suffice, while other circuits used the ultimate employment decision standard (i.e. termination). Eventually this case found its way to the United States Supreme Court.

The Court adopted a more middle of the road standard concluding that the anti-retaliation provision of Title VII “does not confine the actions and harms it forbids to those that are related to employment or can occur at the workplace,” rather the provision “covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant.” The Court spoke of material adversity because it believed there to be an important distinction between significant harms versus trivial harms. “Title VII, we have said, does not set forth a general civility code for the American workplace. We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective.”

While it is unclear what affect the Burlington decision will have on the employment setting, what is clear is that employers have a little more guidance in what the courts will consider actionable retaliation. This may help stem the flood of charges filed with the EEOC or the Nevada Equal Rights Commission (“NERC”) if the retaliation complained of is trivial in nature. On the other hand, it may also result in additional charges being filed from employees who believed the retaliatory conduct had to rise to the level of suspension or termination.

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