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Supreme Court Holds Employers Liable for Workplace Retaliation

June 22, 2006 at 12:00 AM EDT

RAY SUAREZ: Today’s unanimous decision by the high court affirmed protections from retaliation for workers who sue their employers for discrimination.

Joining me now is NewsHour regular Marcia Coyle of the National Law Journal. She was in the courtroom for the arguments back in April and for today’s decision.

And, Marcia, what was the core question that the Supreme Court was being asked to decide?

MARCIA COYLE, National Law Journal: Well, this case involves Title VII of the Civil Rights Act of 1964, which has as its main provision prohibition against discrimination, in the terms and conditions of employment, on the basis of someone’s race, color, religion, gender, national origin.

But it also has another provision that’s known as the anti-retaliation provision, in which it prohibits employers from retaliating against an employee who brings a claim of discrimination or an employee who helps someone bring that claim of discrimination.

The lower courts have been all over the map on how to determine what kind of an action by an employer constitutes illegal retaliation. This case came to the court, asking it to resolve that disagreement among the circuits as to how to judge the employers’ action.

RAY SUAREZ: But if a prohibition against retaliation was already part of the law, and has been on the books for more than 40 years, what was the employee in this case, Sheila White, really asking for?

MARCIA COYLE: Well, first of all, the provision itself, Congress did not define what a retaliatory act was, and that’s why the lower courts had developed various tests for measuring, well, the illegality of the employer’s action.

Sheila White won in the lower courts. She showed that the actions taken against her were, according to the court she was in, materially adversely affected her employment.

The court today addressed that. The employer was the one who brought the appeal to the Supreme Court, felt that the court had — the lower court had applied the wrong test, and wanted a different approach here.

RAY SUAREZ: So in the 9-0 decision that resulted, do we now have a standard that everybody can understand what it is, of what retaliation looks like, what discrimination in this kind of case looks like?

MARCIA COYLE: We do have a standard. The court, which was lead by Justice Stephen Breyer, did two important things here.

The first thing Justice Breyer said was this anti-retaliation provision doesn’t just reach an employer’s action in the workplace. He said that there may be actions by an employer outside the workplace that constitute illegal retaliation.

For example, he gave a true case involving an employer who filed false criminal charges against a former employee who had complained of discrimination, and also a notorious FBI case in which an agent claimed discrimination and the FBI refused to investigate death threats made against that agent by a federal prisoner.

So he said retaliation can be just as injurious outside of the workplace and can also intimidate a worker from filing a discrimination complaint, if it happens outside or in the workplace.

The second thing he said was the test. He said that you have to separate the trivial from the significant when it comes to what an employer does here. The employer’s action has to result in significant injury.

So the test for the courts and juries is this: It’s a materially adverse action, such that a reasonable person would likely be dissuaded from filing a discrimination claim. The reasonable person test is something that courts, he said, are very familiar with, and it’s an objective test. It’s a reasonable person standing in your shoes.

He also said context matters, and this is important because, he said, for example, what if an employer, after you have complained of job discrimination, changes your work schedule? Well, to many employees, that may not mean a whole lot. But perhaps to a woman with young children, it means a lot and it is retaliation, because it makes her unable to perform her job and take care of her children at the same time, so context matters.

RAY SUAREZ: Marcia Coyle, thanks a lot.

Placing the burden on employers


RAY SUAREZ: Now joining us for a closer look at the impact of this ruling, I'm joined by Stephen Bokat, general counsel for the U.S. Chamber of Commerce. He's also the executive vice president of the Chamber's National Litigation Center.

And Charles Craver of George Washington University Law School, he specializes in labor and employment law.

Well, let's start with the basics. Is this an important change for employees, Professor?

CHARLES CRAVER, George Washington University Law School: I would say yes for two reasons. Number one, there have been some indications that the Supreme Court has not been terribly supportive of all of the civil rights laws, and this is a case where they could have narrowed the scope of protection and they clearly chose, and unanimously, not to do it, the first major decision of this type under Chief Justice Roberts and with the new Justice Alito.

The second thing is they did enunciate a clear standard that tells employers: If people complain about discrimination, don't take adverse action that might extend the liability in another area, because, in many cases where someone claims discrimination, they ultimately lose the discrimination case. But if they have been retaliated against, they then have a separate cause of action, so the employer could win on the substance of the discrimination issue and lose on the retaliation issue.

RAY SUAREZ: Stephen Bokat, does this change the legal landscape for employers who are in dispute with their own workers?

STEVE BOKAT, General Counsel, U.S. Chamber of Commerce: It certainly does, Ray. It's going to be easier for employees to bring these kinds of charges against employers.

Employers are going to have to be exceedingly careful in how they deal with any employee who has filed a discrimination charge. And, in some extent, it almost immunizes employees from adverse action by their employer, because then, even if the employer thinks it's justified, it becomes very difficult to prove what the motive was.

RAY SUAREZ: Well, what about a case, as the professor talks about, where actually the original complaint of discrimination, of adverse treatment in the workplace, turns out not to be supported by the facts or the law, but then it's the retaliation that ends up getting the employer in trouble?

STEVE BOKAT: And that actually does happen. It happened in a case where I represented an employer, even under the old standards. So that absolutely does happen.

And it shows why -- employer sees a discrimination charge that's been filed against them that they feel they have no merit, the employer's obviously upset. They are angry with the employee. "I didn't do that. I didn't discriminate against that worker."

And, of course, the initial reaction is to strike out, to strike back. As a counsel, you have to be very careful to counsel your client not to take any action that could be deemed to be retaliatory against that employee.

Painting a clear line


RAY SUAREZ: Well, Professor, often after decisions like this, the interested parties may find that the decision has gone against them, but they crave the clarity that it sometimes brings. Does this decision make it clearer what materially adverse change is, what retaliation is, so both worker and boss know exactly what they're dealing with?

CHARLES CRAVER: Yes. When I was in practice, I represented employers. And the one thing you liked was a bright line.

Before this decision came down, as Marcia mentioned, all over the map. You had court of appeals decisions saying you had to have an extremely high standard, a lower standard. You had to impose a very negative consequence, a not so negative consequence, which meant, to a major employer, you followed the law in your particular region of the country.

Now we have a national standard that says, if this would be likely to deter a reasonable person, it's illegal. You do have to show it was because of the fact they either filed a charge, testified, or opposed a practice that they reasonably thought was unlawful.

So, if that's not present, then this would be irrelevant. But the second thing was, if you did do it for that reason, how serious did the negative consequence have to be before you had a violation? And now we have a uniform national standard.

STEVE BOKAT: Well, I'm not sure I totally agree with the professor, and I think Justice Alito, in a concurring opinion, points out why. His point was -- Marcia talked earlier about the employee who has -- woman employee who has children at home, has child care needs, and the employer changes her working hours. And that's deemed to be retaliatory because it would interfere with her child care.

Well, you may have another employee, same age, a woman, has a discrimination charge, she doesn't have kids at home. So you have two employees, and it will differ whether they have a valid retaliation claim depending on their situation at home, which may or may not be obvious.

So that, I think, makes it a little more difficult for people to determine in a particular case whether there's a valid retaliation claim or not and harder for attorneys and employers to figure out what they can do in a particular case.

RAY SUAREZ: Professor, do you agree with that point?

CHARLES CRAVER: I do, with one exception. If I know that you have children at home and the day shift is critical to you, and I then shift you to the evening shift or the night shift, knowing it will either cause you to quit, which would then be what's called a constructive discharge, and you might be treated as if you were fired at that point instead of resigned, I'm doing that because I want to punish you.

Whereas if you don't care whether you work the day shift or the night shift, I'm not likely to shift you to the night shift just to punish you because I know it doesn't affect you.

And so part of that will be, you do have to put the juror in the position of the claimant, the person with the children, young children at home. And it is going to have an effect, and that's true in many other circumstances.

What they accept for harassment cases on the dock would be different from what they allow in a white-collar occupation. Why? Because we have shoptalk on the docks that we don't have, say, in a law firm or in a hospital, and so the courts often have to look at the particular circumstances.

And I must say, when I read Justice Alito's decision, despite this substantial disagreement on the surface, I actually thought that the opinions were almost identical.

Does it hurt employers?


RAY SUAREZ: Going back to the original argument, a lot of the amicus briefs filed by employers' groups said, in a sense, followed in your slipstream. "We aren't going to move people without being in jeopardy. We're going to have to walk on egg shells. We won't even be able to make decisions for our own needs that involve staffing, and the size of shifts, and that kind of thing."

Was there any indication in today's filings that the court heard that at all?

STEVE BOKAT: I think there is. The court -- Justice Breyer made it very clear that the change in working conditions for the employee who is alleged to have undergone retaliation must be materially adverse.


That exact phrase appeared in our amicus brief.

And it's reflected, he made it very clear in his decision, that minor insults, minor changes in employment will not be considered to be retaliation. There must be a materially adverse change in the employment situation in order for the employee to have a claim.

RAY SUAREZ: And just to close, earlier employers' groups said that there will be a rise in this kind of complaint from workers, Professor, because of this decision. Do you believe that?

CHARLES CRAVER: There will be initially, and then we'll see what happens in the lower courts. But, in many ways, this was like the decisions on sexual harassment or racial harassment, where you did have to ask, "Did you create an objectively hostile employment environment by harassing people because of their race, or their gender, or their nationality, or their religion?"

And initially people thought that would increase, and we haven't seen a significant increase. My guess is here, in the next year or two, we'll see some cases, even where the person loses on the substantive issue of discrimination and they claim retaliation.

But I think, as Steve says, if I could show I was going to transfer the worker anyway because of normal operational needs, the claimant is going to lose.

RAY SUAREZ: And Stephen Bokat, before we go, a rise in these kinds of complaints from workers?

STEVE BOKAT: I think the professor's right. I think initially, and then it will tail off. But certainly, at first, there will be a rise.

RAY SUAREZ: Guests, thank you very much.