According to Craig Snethen, a senior
associate in the Pittsburgh office of
Jackson Lewis, retaliation claims are not uncommon in the business world.
“We’re seeing them with some regularity,
both independently as well as accompanying
discrimination charges,” he says. And,
because retaliation claims can be brought
even where there is no discrimination,
“they’re potentially more difficult to defend
than the discrimination charges themselves.”
Snethen offered Smart Business readers
some tips on understanding and avoiding
retaliation claims.
What types of employee conduct do the anti-retaliation provisions of the civil rights
statutes protect?
The scope of protection is very broad. The
anti-retaliation provision of the major federal
civil rights statutes protects those who participate in certain proceedings, the ‘participation clause,’ and those who oppose unlawful
discrimination, the ‘opposition clause.’
What if an employee is mistaken in the belief
that he or she has been discriminated
against?
A retaliation claim can exist even when a
discrimination claim has no merit.
The anti-discrimination provisions were
designed to protect an employee based on
who he or she is. The anti-retaliation provisions, on the other hand, were designed to
protect an employee based on what he or she
does. An employee doesn’t necessarily have
to be right about the existence of discrimination. He or she must only believe, in good
faith, that the activity is unlawful.
Can an employee cite discrimination against
another employee as a reason for retaliation?
Yes. If an employee has an objectively reasonable good-faith belief that he or she has
suffered a ‘materially adverse’ employment
action by opposing the alleged discriminatory conduct or by participating in a formal
investigation, he or she may maintain a claim
for retaliation.
What types of employer conduct can support
a claim of retaliation?
The types of conduct that can give rise to a
retaliation claim have broadened considerably in recent years. Obviously, conduct that
directly affects the terms and conditions of
one’s employment — like discipline, demotion and/or discharge — can support a claim
of retaliation in some cases. The anti-retaliation provisions now also include conduct
outside the confines of the employment relationship that a reasonable employee would
find to be materially adverse. So any action
that might dissuade an employee from making or supporting a charge of discrimination
may support a claim of retaliation.
In one instance, the Supreme Court ruled
that an employee’s 37-day unpaid suspension
and her reassignment from forklift operator
to much dirtier, tougher duties were adverse
or harmful. If these changes were caused by
reporting unlawful discrimination in the
workplace, it would support a viable claim
for retaliation under Title VII.
Are there limits on the definition of retaliatory conduct?
The anti-retaliation provisions protect an
employee only from conduct that produces
an injury or harm. The Supreme Court speaks in terms of conduct that a reasonable
employee would find ‘materially adverse.’
Therefore, claims based on petty slights,
minor annoyances and simple lack of good
manners generally are considered insufficient for charging discrimination.
However, there are few absolutes. Each
case must be examined in context. In one
decision, the court noted that a supervisor’s
refusal to invite an employee to lunch is normally a nonactionable petty slight, but
excluding an employee from a weekly training lunch that contributes to his or her professional advancement might be actionable.
What are some examples of a ‘trivial harm’?
In one case, a plaintiff was a route manager
selling frozen food products door to door.
She contended that her supervisor had punished her for reporting alleged discrimination
by: criticizing her with a written warning
notice for not soliciting enough potential new
customers, denying her a route builder [a person who would cold-call noncustomers
along her route], and failing to consider her
claims of harassment and discrimination in a
performance appraisal. The court of appeals
found that each of the alleged punishments
— even if they were true — would not give
rise to a viable retaliation claim.
The United States Court of Appeals for the
Third Circuit — the federal appeals court
that covers Pennsylvania, New Jersey,
Delaware and the Virgin Islands — has not
yet addressed the ‘trivial harm’ exception.
However, two Pennsylvania district courts
have. One found that failing to delegate an
employee’s work to a temporary employee
and failing to celebrate an employee’s birthday are minor and trivial and therefore do not
support a charge of discrimination. Another
found that the summary dismissal of the
plaintiff’s allegations of discrimination does
not support retaliation. It also found that dismissal of a complaint is not the type of ‘materially adverse’ action that would dissuade a
reasonable worker from complaining in the
first place.
CRAIG SNETHEN is a senior associate in the Pittsburgh office
of Jackson Lewis. Reach him at [email protected] or
(412) 232-0196.