Legal News
U.S. Supreme Court Clarifies Definition of Improper Retaliation
Wednesday, June 28, 2006
Although prohibited employment discrimination must, by definition, relate to employment circumstances such as compensation, conditions or discharge, the U.S. Supreme Court ruled on June 22nd that retaliation claims have no such restriction. Burlington Northern & Santa Fe Ry. C. v. White, 548 U.S. ___ (June 22, 2006).
Rather, improper retaliation can be any action that would be "materially adverse to a reasonable employee or job applicant." Put differently, the question is whether the employer's action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The anti-retaliation section does not limit prohibited conduct to the workplace.
The Court upheld a jury verdict in favor of an employee whose discrimination charge was upheld by the company, but who was transferred from forklift operator to railroad track labor and also suspended later for insubordination (which the employer later reversed and gave the employee back pay). The Court held that the jury was entitled to base a verdict on evidence "that the track labor duties were by all accounts more arduous and dirtier; that the forklift operator position required more qualifications, which is an indication of prestige; and that the forklift operator position was objectively considered a better job and the male employees resented [the female employee] for occupying it." As to the suspension, the Court noted that the reversal of the action by the employer did not undo the emotional distress suffered by the employee.
This decision applies in federal discrimination suits only. In California, an employee can choose to allege discrimination or retaliation under the state Fair Employment and Housing Act ("FEHA"). Contrary to Burlington Northern, the California Supreme Court has held that retaliation must "materially affect the terms, conditions, or privileges of employment," and courts have rejected the standard of determining whether a person would be deterred from claiming discrimination. Although California generally adopts federal standards that are more favorable to the employee, here an amendment of FEHA might be required, since unlike the federal statute, the text of the FEHA retaliation section is not broader than the discrimination section.
In most cases, both tests should produce the same result. However, some alleged retaliatory actions may not materially affect employment terms or conditions. If nothing else, the Supreme Court decision clarifies the language of instructions given to the juries in retaliation cases.
