Retaliation Claims

Monday, July 24, 2006
Contributed by: Mike H. Loftin

In 2006's most important employment case so far, the U.S. Supreme Court has made it much easier for employees to file, and win, retaliation claims.

On June 22, a unanimous Court ruled, in Burlington Northern and Santa Fe Railway Co. v. White, that an employee claiming unlawful retaliation under Title VII does not need to show that the employer's actions involved an "ultimate employment decision." Instead, the employee or job applicant needs to show only that a reasonable employee would have found the challenged action to be "materially adverse." In other words, the employee or applicant now needs to prove only that the action complained of "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court also stated that the anti-retaliation provision of Title VII forbids actions and harm even where they are not related to employment or where they occur away from the workplace. On the other hand, to prove unlawful discrimination on the basis of such factors as race, gender, religion, etc.--that is, Title VII's substantive anti-discrimination provisions--the Court made clear that Title VII still requires the plaintiff to prove employment-related discrimination. The new standard is a substantial departure from that formerly applied in most of the Courts of Appeals, especially the Fifth Circuit, which includes all of Texas. The bottom line is that we can expect more retaliation cases to be filed and that more of those cases will be decided by the jury, rather than the court. What can an employer do? As always, reports of unlawful discrimination should be taken seriously and should be investigated. Particularly with regard to reassigning job duties after a claim of discrimination, however, an employer would be wise to consider whether a reasonable person would view the change in duties as "materially adverse," even if the reassignment does not result in a loss of pay or benefits.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.