Beware - U.S. Supreme Court Opens Floodgates For Employee Retaliation Lawsuits
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In a unanimous ruling, 9-0 the Supreme Court held that all but "trivial" actions taken against an employee filing a discrimination claim are unlawful retaliation. The Court adopted a broadly worded and employee-friendly definition of the type of retaliation that is prohibited by the basic federal law against discrimination in employment, Title VII of the 1964 Civil Rights Act. Title VII prohibits discrimination and prohibits employers from retaliating against workers who complain about discrimination. But the statute does not define what constitutes retaliation, leading to various different standards among the circuit courts, and uncertainty for employers and employees alike. Under the standard that had been applied by many courts, it had been very difficult for an employee to win a retaliation claim unless the retaliation had resulted in termination. By contrast, the standard adopted by the Supreme Court in Burlington Northern & Santa Fe Railway Company v. White, in an opinion by Justice Stephen Breyer, any "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination will count as prohibited retaliation. Depending upon the context, retaliation might be found in an unfavorable annual evaluation, an unwelcome schedule change or job transfer, or other action well short of termination.
As a practical matter, employers can expect to see a huge upsurge in the number of retaliation lawsuits. Taken to its extreme, an employee could complain about discrimination on his first day of employment and then anything that ever happened to him thereafter could be claimed to be retaliation for his initial complaint. Of course, the employee must still prove that there was some connection between his complaint and the retaliation, and the more time that has passed the more difficult it will be for him to prove.
As a consequence of this decision, employers must redouble their efforts to prevent harassment in the workplace in all forms, sexual, racial etc. They must provide harassment prevention training to their supervisors, and most importantly in the light of the Burlington case, they must investigate all harassment claims promptly and thoroughly, and, if a violation is found, take prompt and effective remedial action. Significantly, they must emphasize to all supervisors that there can be no retaliation taken against the complaining employee whatsoever, because even if the underlying complaint turns out to have not merit, the employee can still bring a retaliation claim.
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