Whenever it comes to the unlawful activity known as “retaliation,” employees should know how to define and handle it. Most of the employees are unable to identify retaliation. And if an employee is unsure what constitute retaliation under the law – if you can’t “see it” – retaliation becomes all the more difficult to prevent.
For example, a regional sales manager alleged she was repeatedly ordered by a male superior to terminate a female sales associate who, in the superior’s view, was not sufficiently attractive. The manager asked for an “adequate justification” before she would terminate the sales associate. After no justification was given the manager refused to comply with the termination order. In the manger’s lawsuit she stated she refused the order because she felt it was sex discrimination. Subsequent to her refusal to terminate the sales associate, she claimed she was subjected to increasingly hostile adverse treatment, which included management soliciting negative information about her and increased verbal and written criticism of her performance. The California Supreme Court concluded the sales manager sufficiently alleged facts to support her claim for retaliation and raised a triable issue she had been subjected to materially adverse employment actions.
An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
The Supreme Court settled the definition of what is an adverse employment action in the retaliation context. This definition introduces the objective standard of a “reasonable employee” but includes the concept of “materially adverse.”
The United States Supreme Court has previously indicated that if harassment by a supervisor results in an “adverse employment action,” it is irrelevant whether the employer had preventive measures in place (such as a harassment policy) or whether the plaintiff unreasonably failed to utilize those measures. As a result, plaintiffs want to show that an adverse action took place, to make the employer strictly liable for the supervisor’s conduct.
The Supreme Court defined an adverse employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” This definition can be a surprise to plaintiffs who feel their workplace was significantly changed by supervisor harassment, only to find that the changes fail to meet this standard for a lawsuit.
The Sixth Circuit had previously held that a transfer would not ordinarily qualify without “a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”
Even so, the change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” In short, while leaving sufficient flexibility for unique facts, courts have generally looked for financial harm to show an adverse employment action.
The Supreme Court resolved this long standing dispute among lower courts as to the definition of “adverse employment action.” The court held, an employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. The Supreme Court also held courts should look at the totality of the employer’s action to see if they rise to the level of having a material impact on the employee. First “material impact” does not require the employee suffer an economic detriment or psychological injury to state a claim for retaliation. Second, there is no requirement the employer’s retaliation constitute one swift blow, rather than a series of subtle, yet damaging injuries.
Retaliation claims can be based on a wide variety of activities protected under both state and federal law. The protected activity could be opposing an employment practice prohibited by state or federal statute, rule or regulation; such activities include refusing to take part in a prohibited act, engaging in public protests and writing letters to officials who lack any responsibility to act on the charges. The protected activity could also be filing a charge, testifying, or assisting or participating in an investigation, proceeding or hearing of the employee’s own claim of unlawful conduct or the claim of another employee under a statute or regulation that prohibits retaliation for such conduct. In addition, an employer’s own policies can be the basis for retaliation claims.
With the gradual expansion of FEHA and many other employment laws, it is not uncommon to find that an employee deserving discipline, discharge, or other adverse action also happens to be in a protected class. While in most cases the protected class does not insulate the employee from legitimate action, such matters must be handled with great care.
Given that a request for religious or disability accommodation will now become a protected activity, it is important that employers continue to train supervisors and human resources personnel to identify and document any requests for accommodation. It remains important for employers to attempt to engage in an interactive process with requesting employees and to carefully analyze each request for accommodation. Management employees should recognize that employees may argue that adverse actions taken at or around the time of an accommodation request are retaliatory. As always, it is helpful to document legitimate business reasons for taking adverse action.
Now the court decision has lowered the bar in Retaliation Claims, employers can expect the number of retaliation charges to increase even further. Because plaintiffs are no longer required to show that they suffered an adverse “ultimate” employment action, many of the claims courts would have rejected under pre-Burlington standards are now likely to succeed.
At the very least, the focus on the deterrent effect of employer actions, rather than simply on the actions themselves, may help employees survive summary judgment and get to a jury because “the significance of any given act of retaliation will often depend upon the particular circumstances.