Supreme Court Retaliation Decision: How Much Difference Will it Make when the Dust Settles?

I have twice written on the background leading to last week’s Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White, the retaliation case involving a female forklift driver:

“High Court to Hear Workplace Retaliation Case”

“Supreme Court Hears Argument in Retaliation Case”

Having missed my chance to be the first to blog about the Court’s unamimous decision in favor of the plaintiff-employee, handed down Thursday, I now get to piggy-back off the work of others, adding my own unique words of wisdom.

Start with a typical mainstream-media story from Reuters:

“Court opens employers to more retaliation suits”

As is true whenever an employee prevails at the Supreme Court, this decision was automatically hailed as “a significant victory for employees and significant loss for employers.”

See also ABA e-Journal: “SUPREME COURT SETS BROAD RETALIATION TEST:
Employees Win Big; More Claims Expected,”
which offers a decent summary of the decision.

An employers’ lawyer is quoted: “This is a big victory for employees . . . likely to boost the number of retaliation claims being brought.”

A St. Louis plaintiffs’ attorney goes farther: “The case also implicitly sends a message that most retaliation cases need to be decided by juries, at trial, rather than by federal judges on defense summary judgment motions.”

Washington Post, in “Court Expands Right to Sue Over Retaliation on the Job,” is also quick to predict major changes in the employment litigation scene:

Now, many retaliation cases that had previously been dismissed because the facts were not in dispute are likely to go to trial. That will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies’ costs for lawyers and defensive management practices.

“Justice Breyer’s standard opens the door to claims based on actions that before today companies would not have suspected were actionable,” said Daniel P. Westman, a lawyer with the firm Morrison & Foerster who represents employers in job discrimination cases. “Companies will have to be much more careful as to how they manage employees who are covered by Title VII.”

For a concise nutshell summary, see Ross’ Employment Law Blog

My take?

As usual, many on both sides overreact.

I’ve seen this too many times: over the long haul, Supreme Court cases that are hailed or condemned as big victories for employers or employees just don’t end up making that much difference in the day-to-day litigation battles.

Here, the Court qualified its new standard for retaliation in several ways that will allow courts to continue to grant summary judgment for employers in appropriate cases, reducing the pro-employee impact of the decision over the long term.

  • “The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”
  • “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse . . . . We speak of material adversity because we believe it is important to separate significant from trivial harms. “
  • “The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms . . . by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining’ . . . . And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.”
  • “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. . . . ”
  • We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable.”

Plaintiffs’ attorneys are fond of simplemindedly — and wrongly — arguing that a standard articulated in terms of “reasonableness” raises an issue that must be decided by a jury.

The Court’s emphasis on objectiveness, on a “judicially administrable” standard, and its references in this regard to the objective standards for constructive discharge and hostile work environment — issues routinely decided on summary judgment — suggest to the contrary.

If a “reasonable jury” couldn’t find a “reasonable worker” would have been deterred, summary judgment for the employer would be in order.

In the bigger picture, the adverse action issue dealt with in this case involves only one element of a retaliation claims. Many such claims will still founder on the protected conduct and/or causation elements of proof.

Finally, retaliation claims are so routine already that it is hard to see a huge flood of more such claims.

I don’t mean to suggest that some cases at the margins will not be affected in favor of employees. They will. But I do think that in five years this decision will not be seen as a huge watershed.

Fellow bloggers from a management perspective who share my skepticism include:

Diane Pfadenhauer at Strategic HR Lawyer: “Supreme Court Verdict in Retaliation Case”:

Looking at the spirit and intent of Title VII, this doesn’t seem unreasonable to me. When Ellerth and Faragher were decided almost 10 years ago, many people predicted doomsday for employers. The reality is that we now have a standard that, although [it] must be sorted out in the courts, will provide guidance to both sides of the bar as to what retaliation really is.

Michael Fox at Jottings By An Employer’s Lawyer: “Supreme Court Answers the Question: What Is An Adverse Employment Action?”

My first thoughts — a not terribly unexpected result. It will be talked about as a pro-employee decision — which it is — but employers can take heart in the explanatory comments, particularly that the test is objective. Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the Court.

Jottings also has this summary of media overreactions, with some comebacks: “Burlington Northern v. White — The Day After”:

From this employer’s lawyer’s perspective — Burlington Northern v. White is clearly a substantial development that any employer must take into account — but let’s wait for the courts, the only group who’s opinion really matters, to weigh in before hitting the panic button.

I’m not saying the decision won’t help employees in some cases.

But I’m 100% in agreement with Michael Fox about not hitting the panic button.

I would say that employers’ counsel should immediately scrutinize every Supreme Court employment case — whichever side wins — for the qualifying language that will be used by the losing side to keep the case from being a one-sided watershed. It will almost always be there if you look for it.

And when you find it, start using it in case preparation and briefing ASAP.

Photo credit: darren “djp” paine via flickr
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6 Comments

  1. J.Gillfore

    As in-house counsel for company with 4,000 employees, the primary impact isn’t litigation — it’s the potential for litigation, and especially the potential for losing a MSJ.

    The risk analysis for dealing with “problem employees” who have raised a Title VII complaint is different today compared to a week ago. Actions that formerly were okay may now be actionable.

    The difference significantly constricts management’s options in addressing real issues in the workplace. This is an important point because every single employee who has raised a complaint or filed a charge has been a “problem employee” in other respects.

    Now, however, I do not feel I am serving my client well by simply saying, “Sure, go ahead and transfer the complainant to a location where his attendance issues won’t have such an adverse impact on co-workers.” In day-to-day life, this is significant.

  2. Good point.

    However, I’d have been slow to approve such a transfer before, at least without verifying the transfer had no significant negative impact on the employee.

    I have long counseled for such caution in using a transfer to respond to a harassment complaint.

    Before this decision, there were plenty of cases alleging retaliatory transfer.

    And in your example, there is a nonretaliatory reason, so even if the transfer is an adverse action that may be the basis for a retaliation claim, that just gets the employee to first base — the equivalent of proving they are a minority and were fired. They still have to prove you didn’t do it out of concern for the attendance issue, but in retaliation.

  3. JimmyD

    “every single employee who has raised a complaint or filed a charge has been a “problem employee” in other respects.”

    Now that is simply an amazing statement to see in print! Care to clarify yourself? Are you saying that merely filing a charge or lodging a complaint makes someone a problem employee? That no complaint is ever legitimate? That only people who are generally whiners and problems will make a complaint?

  4. Thanks for pointing out that the previous commenter made an extreme statement that quite clearly can’t be literally true.

    I can only speak for myself, but I do think there is a sense among many in management and HR that many complaints are not legitimate, and thus are brought by “people who are generally whiners and problems,” with such people likely not being among the best employees.

    Whether or not this is true, it is essential to look past any such feelings, closely examine each and every complaint of discrimination or harassment for possible merit, take appropriate action, and be ever-vigilant against subsequent actions against complaining parties that could be construed as retaliation.

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