Recent U.S. Supreme Court And Third Circuit Decisions Expand Employees Rights To Assert Retaliation Claims

By: Elaina Smiley, Esquire es@muslaw.com

Employers must exercise caution in their interactions with employees who have complained about discriminatory or harassing conduct. Employers may now be liable for actions that are not directly related to employment, for actions that are committed outside of the workplace, for actions that may dissuade an employee from filing a charge, and for those actions committed by other employees.

On June 22, 2006, the U.S. Supreme Court issued a decision upholding an expanded interpretation of what constitutes a retaliation claim. Burlington Northern & Santa Fe Railway Co. v. White involved a claim filed by the only female employee working in the maintenance department with her primary duty to operate the forklift. White complained that her immediate supervisor had engaged in sexually harassing conduct. The supervisor was suspended for 10 days and ordered to attend sexual harassment training. On the same day White was told about the supervisor’s discipline, she was removed from forklift duty and assigned to perform track laborer tasks which were far dirtier and tougher than the forklift position. White filed a charge, claiming that the reassignment of duties was unlawful gender discrimination and retaliation for complaining about her supervisor. Subsequently, White was suspended without pay for allegedly being insubordinate. During an internal grievance process, it was determined that White was not insubordinate and she was reinstated to her position and awarded back-pay for the 37 days she was suspended.

Title VII’s anti-retaliation provision forbids employer actions that discriminate against an employee because she/he has opposed a practice that Title VII forbids. Prior to the Supreme Court’s decision, the federal courts were split on whether the action had to be related to employment and how harmful the action must be to constitute retaliation. The Supreme Court found that an employer can retaliate against an employee “by taking actions not directly related to his employment or by causing him harm outside the workplace.” This means that actions taken outside of employment may be sufficient to support a retaliation claim. The Court also held that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” An employee must show the action was “materially adverse” and not merely trivial harms such as minor annoyances, petty slights, or lack of good manners.

The Supreme Court found that there was sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. The Court stated that the jury was not required to find that the actions were related to the terms or conditions of employment. The Court rejected Burlington’s argument that White’s former and present duties both fell within the same job description and therefore, no retaliation occurred. The Court noted that a good way for employer’s to dissuade employees, such as White, from bringing discrimination charges was to insist that she spend more time performing more arduous duties and less time performing those duties that are easier or preferred. The Court also rejected Burlington’s argument that because she was paid back-pay for her 37 day suspension that she did not have a retaliation claim. The Court noted that White had to live for 37 days without income which constituted a serious hardship.

A recent Third Circuit decision finding that a retaliation claim could be predicated upon a hostile work environment may also expand an employer’s liability for workplace harassment. In Jensen v. Potter, Jensen’s supervisor made unwanted sexual propositions, calling her at work, telling her to come to his house because he wanted to “make love to her all day long.” Jensen reported the incident to her manager. After an investigation, the supervisor was fired. Some of the employees were upset that Jensen caused the supervisor to be fired and began to harass her. One employee made insulting remarks to her and came up behind her and clapped two objects together. Another employee threatened Jenson by driving U-Carts towards her at a rapid pace. Furthermore, her car was vandalized on two occasions in her workplace parking lot. Jensen repeatedly complained about the conduct. This conduct continued for approximately 19 months.

Based on these events, Jensen brought claims for sex discrimination and retaliation. The District Court granted summary judgment on both claims. The Third Circuit reversed, finding that a retaliation claim predicated upon a hostile work environment is cognizable under Title VII. The Court found that if retaliatory harassment is severe or pervasive it could constitute an adverse employment action under Title VII. The court found that the employee’s comments were directly connected to Jensen’s report against her former supervisor and therefore were in retaliation for her making a complaint of sexual harassment. The Court also addressed whether the employer should be liable for the co-worker harassment. In order to establish employer negligence, the plaintiff must show that management knew or should have known about the harassment, but failed to take prompt and remedial action. Because Jensen continually reported the harassment and it took the employer 19 months to address her complaints, the court found that the employer could be liable.

These decisions expand employer liability for actions that are not directly related to employment, for actions that are committed outside of the workplace and for employees’ harassing conduct. Based on the expanded view of retaliation claims, employers must exercise caution when taking any action against an employee who has lodged a complaint. Employers should update their handbooks and policies to ensure that their policies prohibit retaliatory harassment and should educate employees about their duty not to engage in any form of unlawful harassment. Finally, employers should promptly investigate reports of retaliatory (or other illegal) harassment and take prompt and effective action to remedy any such harassment.

For more information about these cases or defending retaliation claims, contact Elaina Smiley at es@muslaw.com or 412-456-2821.