By Mark H. Newbold, Police Attorney, Charlotte-Mecklenburg Police Department, Charlotte, North Carolina
ave you ever transferred an employee or denied his request for training because he was a constant complainer? Have you ever excluded a problem employee from a weekly training lunch because she is such a pain in the neck? Finally, have you ever denied an officer’s request for a shift change because of a minor personal dig directed at you? Under some circumstances, such management actions could constitute illegal retaliation.
What’s the Big Deal?
Based on a recent Supreme Court opinion, if an employee filed an Equal Employment Opportunity Commission (EEOC) complaint or helped another employee with his or her complaint, and if the harm caused by your actions would “dissuade a reasonable worker from making or supporting a charge of discrimination,” then the behaviors described above may now be admissible as evidence to support a retaliation claim filed by the plaintiff under Title VII.
In June 2006 the U.S. Supreme Court, in Burlington Northern & Santa Fe Railway Company v. Sheila White, held that there was sufficient evidence to uphold a jury verdict of illegal retaliation where a woman’s employer shifted her work responsibilities and disciplined her for insubordination (the charge was overturned by the grievance board) after she filed complaints with the EEOC.
The Facts in Burlington
In June 1997 Sheila White applied for a position as a track laborer at the Burlington Northern & Santa Fe Railway Company. A manager for Burlington Northern, Marvin Brown, interviewed White and mentioned during the interview that he was impressed with her background because she could operate a forklift. White was hired and was assigned to the maintenance department, where her responsibilities included removing and replacing track materials, cutting brush, and removing cargo that was spilled onto the right of way. White, the only female assigned to the department, took up her duties as a track laborer. After a coworker who operated a forklift left Burlington, the operation of the forklift soon became White’s primary duty, although she occasionally performed some of the tasks of a track laborer.
In September 1997 White complained to Burlington management that her supervisor, Bill Joiner, repeatedly told her women had no place in the maintenance department and that Joiner had made insulting and inappropriate comments to her in front of her coworkers. White’s complaint against Joiner was sustained and he was suspended for 10 days and ordered to attend a sexual harassment class.
Brown told White that her complaint was sustained. During this conversation he also told White that she would no longer operate the forklift but would instead go back to her original assignment as a track laborer. The reason provided was that a “more senior man” should operate the forklift, which was “a less arduous and cleaner job.”
White then filed a complaint with the EEOC asserting that the shift in her duties was unlawful gender-based discrimination and was done in retaliation against her for filing the original complaint against Joiner. The first EEOC complaint was quickly followed by a second one alleging that Brown was continuing to retaliate against her because every detail of her work was now being scrutinized.
A short time after Brown was notified of the second complaint, White and her immediate supervisor, Percy Sharkey, got into a disagreement that led Sharkey to tell Brown that White was insubordinate. Brown immediately suspended White without pay based on Sharkey’s allegations. White appealed the suspension through Burlington’s internal grievance procedure and was eventually cleared of the charge by the grievance board. Based on the board’s findings, Burlington immediately ordered management to reinstate White and pay her for the 37 days for which she was suspended. Upon being reinstated, White filed her third and final EEOC complaint against Burlington claiming that her 37-day suspension was the result of impermissible retaliation.
After exhausting her administrative remedies as required by Title VII, White filed a complaint in federal district court claiming that Burlington, by changing her job functions and suspending her for 37 days, violated the anti-retaliation provisions of Title VII. A jury found for White and awarded her $43,500 in compensatory damages and $3,250 in medical expenses. Burlington appealed to the Sixth Circuit Court of Appeals and eventually to the U.S. Supreme Court, which agreed to hear the case to settle the following questions: Is the scope of Title VII’s anti-retaliatory section limited to workplace-related retaliatory acts and harm? To what level of severity must the harm rise to be actionable under Title VII’s anti-retaliatory section?
Actionable Behavior Includes Acts outside the Workplace
The Court looked at two sections of Title VII: specifically 703(a) and 704(a). The court noted that Section 703(a) prohibits an employer from specific and tangible discriminatory conduct related to employment. In particular, it prohibits discriminatory hiring and firing, or discrimination “with respect to [a person’s] compensation, terms, conditions, or privileges of employment.”1 On the other hand, 704(a) prohibits an employer from discriminating against any employee or applicant because he or she has opposed any practice made unlawful under Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” related to conduct prohibited by Title VII.2
The Court then turned to the purpose of each section and noted that 703(a) (the antidiscrimination provision) “seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.”3 On the other hand, 704(a) seeks to protect the workplace against discrimination “by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Generally speaking, 703(a) seeks to prevent injury “based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.” The Court continued and emphasized that without the willingness and cooperation of the employee to file a complaint, effective enforcement against discriminatory conduct will never occur.4
For these reasons the Court chose not to limit retaliatory acts to ultimate or tangible employment actions that occur in the workplace, such as firing or demoting someone after he or she has filed an EEOC complaint. Rather, the Court held that, based on the language of 704(a), the protection should extend to beyond employment or workplace-related harms.5
Retaliation Does Not Include Petty Slight or Trivial Snub
Just how severe must the harm be before it is actionable under the anti-retaliation provision of Title VII? The type of harm that is actionable does not include the occasionally snub or petty slight that unfortunately occurs in the workplace. In order to prevent or filter out allegations of trivial and petty retaliation, the Court inserted an objective standard for sufficient harm: “In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court reasoned that petty slights and annoyances from a coworker or supervisor is to be expected in today’s workforce even when someone files a complaint of discrimination. Since minor slights would not, standing alone, discourage a reasonable employee from filling a complaint, it stands to reason that they should not be actionable.6
Law enforcement officers know Fourth Amendment law and are keenly aware that a search or seizure must be reasonable to be constitutional. Officers are also aware that the reasonableness standard requires one to evaluate the totality of the circumstances. A similar process is required in evaluating whether the retaliatory act is actionable: “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”
In applying the reasonable worker standard to the facts at hand, the Court found that the reassignment of White back to track laborer was actionable under 704(a), even though it was part of her general job description, because she was forced to perform more arduous duties. The fact that her general job description contained those duties was not of consequence. Rather, the court focused on the shifting of responsibilities and found that replacing functions that were more pleasant with those that were more demanding was of sufficient severity to dissuade a reasonable worker from filing a complaint in the first place.
Similarly, the Court looked at her 37-day suspension without pay. According to the Court, the fact that she received back pay for the suspension did not fully compensate her for the injury. In reviewing all of the circumstances, including the effect the suspension had on her personal life outside the workplace (making ends meet without a paycheck), the court concluded that struggling without a paycheck was a harm that was materially adverse and sufficient to discourage a reasonable worker from filing a complaint.
How to Spot Retaliation in Your Department
The Court in Burlington Northern expanded the type of harm that is actionable to include acts outside the workplace. It also inserted a reasonable worker standard to measure the severity of the harm. By doing so, the Court increased the potential for more retaliation claims moving forward to trial. After an employee files an EEOC claim, it would be wise to be on the lookout for the following scenarios, as they might indicate that an employee is being subjected to potentially retaliatory acts.
- The employee’s performance evaluation dramatically plummets without objective documentation after the complaint is filed.
- The employee’s performance objectives significantly increase in number or intensity above and beyond the written job description.
- The employee is suddenly subjected to intense scrutiny.
- The employee is transferred to a position that is lower in status without an objective need to do so.
- The employee’s shift hours are changed for no apparent reason.
- The employee is denied opportunities available to other workers such as training or other company perks. These perks might include schedule adjustment to accommodate child care or to attend educational classes.
- An immediate supervisor is building a case against a subordinate rather than correcting poor performance.
The need to objectively document behavior in performance evaluations is glaringly apparent. Such documentation ensures that both the employer and the employee can objectively address concerns at the earliest opportunity. Likewise, documentation is particularly important in defending against bogus charges filed by disgruntled employees who might use Title VII as a shield against a pending disciplinary charge or a legitimate transfer based on workplace necessity. ■
142 U.S.C. 2000e-2(a).
242 U.S.C. 2000e-3(a).
3Burlington Northern & Santa Fe Railway Company v. Sheila White, __ US __, 126 S. Ct. 2405, 2412, 165 L. Ed 2d 345(2006).
4“Title VII depends for it enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. Plainly effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. Interpreting the anti-retaliation provision to provide broad protections from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.” Id. at 126 S. Ct. 2414.
5“[T]he scope of the anti-retaliation provision extends beyond workplace-related or employment related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so called ‘ultimate employment decisions.’”
6The Supreme Court reasoned “it is important to separate significant from trivial harms. Title VII . . . does not set forth a general civility code for the American Workplace. [J]udicial standards for sexual harassment must filter out complaints attacking the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing. An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience . . . courts have held that personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers are not actionable under 704(a).”