Some HR professionals and lawyers predicted that the U.S. Supreme Court’s 2006 decision in Burlington Northernv. White, 548 U.S. 53 (2006), would open the floodgates for retaliation charges and lawsuits. Although cause and effect is hard to determine, the following facts are undeniable: Through 2009, when the most recent U.S. Equal Employment Opportunity Commission statistics were available, there was a steady increase in retaliation charges filed. There was also an increase in state and federal retaliation lawsuits filed.
In its Burlington Northern decision, the Supreme Court lowered the standard of proof for retaliation claims, making it much easier for employees to prove those kinds of cases. Typically, an employee who engages in an alleged protected activity, such as filing an internal complaint, is subsequently disciplined or treated in an adverse way. The employee will claim that the discipline or adverse action was motivated by the protected activity. To succeed, the employee need only show that retaliation was a motivating factor in the employer’s later decision.
In Burlington Northern, the U.S. Supreme Court expanded the scope of unlawful retaliatory adverse employment actions to those viewed by a reasonable person in the employee’s position as materially adverse but not necessarily ultimate employment actions. Burlington Northern represented a significant departure from prior legal consideration as to the required proof in employees’ retaliation complaints.
This article revisits Burlington Northern in light of the retaliation cases that followed, and suggests ways to avoid or reduce retaliation claims.
The Burlington Northern case was filed by Sheila White, who worked as a “track laborer” for Burlington Northern railroad company. Her assignment was to operate a forklift, one of the least physically demanding and cleanest job assignments at White’s facility. The forklift driver position was considered one of the most desirable jobs.
White complained that her supervisor repeatedly made comments that women should not work in his department. Burlington Northern investigated White’s claim, found that it had merit and suspended her supervisor for 10 days. The supervisor was required to attend a sexual harassment class.
But Burlington Northern’s investigation had another consequence. During the investigation, several employees complained that, because they were senior to White, it was unfair that she was given the forklift assignment. Burlington Northern decided that these complaints had merit and reassigned White, giving her forklift assignment to a senior male co-worker.
White filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that she was reassigned in retaliation for complaining about her supervisor. She claimed that she was placed under surveillance by her employer. Later, White was accused of being insubordinate to another supervisor and was suspended without pay for 37 days. White filed and won an internal grievance, and received back pay for those 37 days. She filed a second charge with the EEOC about the suspension.
White’s lawsuit alleged retaliation for the reassignment and the suspension. A jury agreed with White and awarded her $43,500 in compensatory damages. Burlington Northern appealed. The 11th U.S. Circuit Court of Appeals held that White’s reassignment was not an adverse employment action that could form the basis for a retaliation claim because White’s title and compensation remained the same.
When the Supreme Court heard the case, it disagreed, reversed in favor of White and widely expanded the definition of “adverse employment action” to include reassignment to a less-desirable job. Rather than focus on the negative financial impact, courts now must look at whether the alleged adverse employment action is material in that it would dissuade a reasonable individual from reporting harassment or discrimination.
After Burlington Northern, many predicted that retaliation claims would skyrocket, and they have. In addition, retaliation cases that previously would have ended at summary judgment are now going to juries, who are often sympathetic to employees—especially in this economy. More U.S. courts are holding that job transfers and changes in work assignments can be considered retaliatory adverse employment actions.
In fact, a federal court in Michigan has even held that a job transfer that involved a one-time bonus and nominal pay increase was an adverse action because it resulted in less opportunity for advancement and less prestige for the employee (Pitts v. Kone Inc., Case No. 05CV71436 (E.D. Mich. Oct. 16, 2006)).
Courts are finding that negative performance evaluations and discipline notices can be considered retaliatory adverse employment actions. This is true when the evaluations are less favorable than previous ones or when they result in denial of a bonus. Even a suspension overturned by a grievance process can constitute an adverse employment action.
Other adverse employment actions in cases where employees have avoided summary judgment include threats of losing pay, benefits or a job; investigations that focus on character rather than the complaint or harassment; and denial of opportunities for advancement or use of accrued sick leave.
But not every employer action that makes an employee unhappy will be considered an adverse employment action by the courts. For example, courts have found that performance improvement plans are not, on their own, materially adverse employment actions. Keep in mind that courts in different parts of the country are coming to different results, and it is not easy to discern what distinguishes cases that win on summary judgment from cases that go to a jury.
It does seem, however, that courts are making an effort to distinguish trivial actions and petty slights from material adverse actions that would deter a reasonable employee from engaging in protected activity. Several appellate courts, for example, have held that rude comments by supervisors do not amount to retaliation, even when a supervisor refers to an employee as a “troublemaker” for making complaints.
Back to the Basics
So, in light of Burlington Northern and cases decided in favor of employees since then, what can employers do to protect themselves? They can and should be proactive and consider the basics.
Most successful retaliation claims result from employers taking so-called “adverse employment actions,” including terminations and other discipline, without enough due diligence and planning. This may be particularly true when line managers come to you and declare, “I have had it. I want him fired today.”
Too often, this may be the first time an HR professional has heard about this employee. While there are no silver bullets, there are basic actions that may help avoid or reduce the likelihood of a retaliation charge or lawsuit.
When confronted with termination or other discipline of an employee, consider the following steps as part of due diligence:
- Implement and follow a zero-tolerance anti-discrimination and anti-retaliation policy. It will inform employees that such behaviors are prohibited.
- Have a toll-free telephone number for complaints. Such a process may allow employees to resolve complaints internally.
- Reflect on what discipline to take. Seldom is it necessary to terminate an employee on the spot. Even when immediate termination is the appropriate sanction, it is recommended that the employee be suspended pending investigation subject to discharge.
- Recognize employee-protected activity. Knowing what employee behavior is protected, such as filing an internal complaint, and knowing when it occurred, may keep you from retaliating against the employee. Retaliatory actions may include job transfers; changes in work assignments; negative performance evaluations; discipline notices; threats of losing pay, benefits or a job; internal investigations; denial of career advancement opportunities; and more.
- Timing is important. Discipline closely linked in time to protected activity may create a presumption of retaliation.
- Listen to the employee’s version. Fairness requires that you give the employee the opportunity to tell his or her side. Sometimes, motive may be critical in your decision as to what discipline, if any, to administer.
- Conduct a complete investigation. Investigate all leads and interview all relevant witnesses.
- Take appropriate action. If a violation is found and discipline warranted, take the action and document it.
- Follow up on discrimination and harassment complaints. Speak with complainants after the initial investigation to ensure that they feel comfortable in the workplace and do not perceive retaliation. Follow up quarterly, at least for a while.
- Don’t overreact. It is easy to act in haste and based on the facts as they appear at the moment. A suspension pending further investigation allows you time to reflect, in case the facts are not as they first appear.
- Be consistent. Discrimination and retaliation charges often succeed because employers are inconsistent in following policies and procedures or adhering to past practice.
- Document, but don’t over-document. Documentation should be timely, thorough and accurate. Sometimes there is a tendency to document everything a “bad” employee does. Advise your managers to resist the urge. Documentation should be consistent with past practice and the same for all employees. If you use a progressive process, document within that process.
- Train supervisors on the basics. Line managers may not remember HR policies and procedures. Revisit them regularly.
- Review EEOC guidelines. These guidelines can often provide guidance for particular situations.
- Consult with legal support before taking severe disciplinary action.
- Don’t retaliate. Enough said.
First Line of Defense
HR professionals represent the employer’s first line of defense to charges and complaints of retaliation.
Be proactive and prepare for such cases in advance of the charge or lawsuit being filed. No matter what safeguards you have in place, or how fair your discipline or other processes, certain employees will consider them unfair. Therefore, some employees inevitably will file retaliation charges or lawsuits. That’s the price of doing business.
Being proactive, considering the basics and conducting due diligence reviews should minimize their number and effect.
The authors are attorneys in Ogletree Deakins’ Tampa, Fla., office.