Don't get mad, get even: practical strategies for dealing with retaliation claims by the plaintiff-employee.

• Author: Silverglate, Spencer H.

SUPPOSE a female employee files a charge with the EEOC alleging sexual harassment by her male supervisor. The supervisor learns of the complaint and begins to avoid the employee. When he invites other employees to lunch, he excludes her. He also gives her fewer work assignments. On her next performance evaluation, the supervisor gives her a lower score than in the past. It seems the entire department is buzzing about the claim. Fed up, the employee reports the situation to human resources, which decides that everyone's best interests would be served by transferring the subordinate to another department. The new position has the same salary and benefits, but somewhat less prestige than the former position.

Does one or more of these acts constitute retaliation? They all may according to the Supreme Court's recent decision Burlington N. & Santa. Fe Ry. Co. v. White. (1) In Burlington, the Court approved the liberal standard espoused by a minority of federal circuits of what constitutes an adverse employment action in a Title VII retaliation claim. The decision removes any doubt that the standard for establishing an adverse employment action is lower for retaliation claims than substantive claims of discrimination.

Even before Burlington, retaliation was perhaps the fastest growing and most difficult to defend of all discrimination claims. In 2006, the EEOC received 22,555 retaliation charges. (2) In 2007, the year following Burlington, the EEOC received 26,663 retaliation charges, an 18.2% increase from the previous year. (3) 32% of all charges in 2007 related to retaliation, and the EEOC recovered more than $124 million in connection with them (not including monies obtained through litigation). (4) One can only assume that the numbers of retaliation charges will continue to increase in the future.

This article discusses retaliation claims since Burlington and recommends practical strategies for dealing with employees who make or support claims of discrimination. Of course, the overarching strategy for dealing with employees who engage in protected activity is not to attempt to get even. The best approach is to resolve the underlying claim in an appropriate manner, whether it is founded or not, without reprisals. If a retaliation lawsuit is filed despite these efforts, winning it will prove more satisfying than getting even.

1. Burlington: A New Standard for Retaliation Claims

   To present a prima facie case of retaliation under Title VII, a plaintiff must prove that: (1) he engaged in protected activity, (2) the employer was aware of the activity, (3) the employer took an adverse employment action against the employee and (4) a causal connection exists between the protected activity and the adverse employment action. (5) In 2006, the Supreme Court in Burlington resolved a split among the circuits on the third element--what constitutes an adverse employment action in a Title VII retaliation claim.

   Before Burlington, the Third, Fourth and Sixth Circuits applied the same standard for retaliation as substantive discrimination claims--that the challenged action must affect the terms, conditions or benefits of employment. (6)

   The Fifth and Eighth Circuits were more restrictive. They limited actionable retaliation to "ultimate employment decisions" such as hiring, termination, promotion, demotion and compensation. (7)

   The Seventh and District of Columbia Circuits were more liberal. They held that the challenged conduct must have dissuaded the reasonable employee from making or supporting a charge of discrimination. (8)

   Finally, the Ninth Circuit, following EEOC guidance, held that the plaintiff must simply establish "adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." (9)

   Factually, plaintiff in Burlington was the only woman working for the "maintenance-of-way" department for a railroad's Tennessee yard. She was hired as a track laborer. Her primary duty was operating a forklift, but the job also involved removing and replacing track components, transporting track material, cutting brush, and removing litter and cargo spillage from the right-of-way. Plaintiff complained to company officials that her supervisor repeatedly told her that women should not be working in the maintenance-of-way department. She also complained that he made insulting and inappropriate remarks to her in front of male colleagues. After an internal investigation, the supervisor was suspended for 10 days and ordered to attend sexual harassment training.

   Soon after her complaint, Plaintiff was removed from forklift duty and reassigned to standard track laborer tasks. She was told that a "more senior man" should have the "less arduous and cleaner job" of forklift operator. Plaintiff filed a complaint with the EEOC claiming that the reassignment was gender-based and retaliatory. A few days later, Plaintiff got into a disagreement with another supervisor. She was suspended without pay for insubordination and invoked the internal grievance procedure. However, the employer ultimately reversed its decision and she was awarded back pay for the 37 days she was suspended. She sued, claiming that both the reassignment and suspension amounted to unlawful retaliation under Title VII.

   The Supreme Court began its analysis of the standard to be applied in retaliation cases with the text of Title VII. The statute's core anti-discrimination provision states:

   It shall be an unlawful employment practice for an employer--

   (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

   (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (10)

   In contrast, the anti-retaliation provision states:

   It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. (11) The Court observed that the words in the substantive anti-discrimination provision--"hire," "discharge," "compensation, terms, conditions, or privileges of employment," "employment opportunities," and "status as an employee"--explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision, which simply makes it unlawful to "discriminate" against an employee who engages in protected activity. (12)

   The Court went on to explain why the language differences make sense given the distinct purposes behind the two provisions. The substantive, anti-discrimination provision seeks to prevent injury to individuals based on who they are, i.e., their racial, ethnic, religious or gender-based status. The anti-retaliation provision, on the other hand, seeks to prevent harm to individuals based on what they do, i.e., their conduct. To secure the first objective, the Court reasoned, Congress did not need to prohibit anything other than employment-related discrimination. "The substantive provision's basic objective of 'equality of employment opportunities' and the elimination of practices that tend to bring about 'stratified job environments,' would be achieved were all employment-related discrimination miraculously eliminated." (13)

   In contrast, the anti-retaliation provision's objectives would not be eliminated by focusing solely on the workplace. The Court observed that "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. (14)

   On the other hand, the Court also noted that the anti-retaliation provision protects individuals not from all retaliation, but from retaliation that produces injury or harm. Against this backdrop, the Court adopted the standard applied by the Seventh and District of Columbia Circuits. That is, "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...." (15)

   The Court went on to clarify what it meant by "material adversity":

   We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code of the American workplace." ... 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. (16) The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC,"...