Workforce Management
August 2008
The Supreme Court’s decisions in two cases are not entirely bad for employers. While they endorse an additional means to sue an employer, they do not change the burden of proof needed for an employee to prevail on a retaliation claim. By Jon Meer
Two recent U.S. Supreme Court decisions, Gomez-Perez v. Potter and CBOCS West, Inc., v. Humphries, have now affirmed an additional way for employees to file suit for job retaliation based on a prior claim of discrimination. As the court held, the statutory protection of "equal contract rights" allows employees to pursue retaliation claims under a relatively little-known civil rights law enacted just after the Civil War (42 U.S.C. § 1981).
However, the court’s decisions are not entirely bad for employers and business owners. While the decisions endorse an additional means to sue an employer, the decisions do not change the burden of proof needed for an employee to prevail on a retaliation claim. Thus, an employer is likely to be able to defeat a retaliation claim under the "equal contract rights" provisions of 42 U.S.C. § 1981 using the same defenses available for a claim under Title VII of the Civil Rights Act of 1964, or similar state anti-discrimination laws.
The legal definition of retaliation
Another decision, Burlington Northern & Santa Fe Railways Co. v. White also addressed the burden of proof for a retaliation claim. In that case, the Supreme Court held that an employee must prove he or she suffered from a "materially adverse" employment decision as a consequence of complaining about alleged discriminatory conduct. To meet this standard, an employee must show that the decision might have "dissuaded a reasonable worker from making or supporting a charge of discrimination" against the employer, according to the court. In other words, the act of retaliation must be severe enough that it would have a chilling effect on other employees, and make them think twice about challenging unlawful conduct.
As a practical matter, not every adverse action taken against an employee constitutes retaliation. The Supreme Court has expressly held that claims for retaliation require a "significant" rather than "trivial" harm to an employee. As the court stated, the prohibition against retaliation "does not set forth a general civility code for the American Workplace." Thus, an employee’s decision to report potentially discriminatory behavior "cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience."
Context is important The Supreme Court’s ruling on what might constitute retaliation speaks in general terms, rather than delineating specific prohibited acts. As the court noted, an "act that would be immaterial in some situations is material in others."
Full Story: http://www.workforce.com/archive/feature/25/69/85/index.php
No comments:
Post a Comment