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Have you considered filing a bias complaint against your employer under Title VII of the Civil Rights Act of 1964, but pulled up short fearing your boss would seek revenge?
Thanks to the June 2006 Supreme Court decision in Burlington Northern & Santa Fe Railway v. White, you now have substantially more protection against retaliation if you complain of discrimination based on race, sex, national origin or religion.
Courts have long afforded workers some protection against retaliation, but now the Supreme Court has said that you need not be fired, demoted or lose pay to succeed in such a claim. The court unanimously upheld damages awarded to Sheila White, a Burlington Northern worker who was shifted to a less desirable job at the same pay after complaining about sexual harassment by her boss.
"Workers need to know that they really are protected by the law if they make a legitimate claim of retaliation," says Peter Siegel, an attorney with Greenspoon Marder in Fort Lauderdale, Florida, who represents both employers and employees.
Decision Broadens Definition of Retaliatory Actions
Writing for the court, Justice Stephen Breyer says that a retaliation claim is legitimate when the employer takes actions that are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
With this language, "the court has just burst through the ceiling on what is recognized as adverse action" by an employer against an employee, says Gregory Keating, a partner and management attorney with Littler Mendelson in Boston. "There's no question that this decision will have a radical impact on the workplace and how employers and employees behave."
Many attorneys representing management say the ruling will allow employees to put their employers on thin ice merely by filing a Title VII complaint. "The verdicts are astounding," says Keating. "A continuing trend is that the jury exonerates the employer on the discrimination complaint and then absolutely whacks the employer on the retaliation piece."
But other experts say the primary effect of the ruling will be to give employees their day in court. "I don't see any slippery slope toward an explosion of unfounded cases," says Piper Hoffman, an associate at Outten & Golden LLP in New York City who represents employees.
How Employer Policies and Practices Might Change
Employers that are serious about avoiding a spike in retaliation claims are likely to take a number of actions that should change conditions for workers.
"Employers need to be a lot more careful," says Siegel. "I've been in cases where employers thought they had free rein to make life miserable for a complainant as long as they didn't fire or demote."
Companies are likely to boost training around the Burlington Northern decision and discrimination and retaliation in general, increase documentation of actions involving workers who have complained of discrimination, and beef up communications among human resources, the legal department and all of the company's supervisors.
"You can't just say the policy is in place; you need to put training behind those policies," says Jennifer Berman, managing director of human capital advisory services at CBIZ in Chicago.
Ruling May Apply to Retaliation Claims Under Other Bias Laws
What about retaliation claims brought in conjunction with antidiscrimination laws beyond Title VII, such as the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act?
"It is very likely that courts would apply the standards in this decision to similarly written laws," says Berman.
But Hoffman is a bit more circumspect about the applicability of this ruling to actions brought under other laws. "This ruling is firmly rooted in the language of Title VII," she says. "Courts will look to this ruling for instruction in interpreting other statutes, but it won't be binding."
