Wednesday, May 9, 2007

The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims?

While Ohio and federal anti-discrimination laws have long prohibited an employer from retaliating against an employee who makes a claim of discrimination, opposes an act of discrimination, or participates in any manner in an investigation, proceeding, or hearing related to a claim of discrimination, the frequency of these claims continue to rise. Historically, courts would look for some economic impact before deciding that a job action was retaliatory.

On June 22, 2006, the United State Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. White, a case that many employers feared would radically alter the landscape of retaliation claims, loosen the meaning of “retaliation,” and expand the parameters of those employees earning the law’s protection. The Court clarified that an employer need not take an ultimate employment action (such as termination, demotion, or transfer) against an employee for retaliation to occur. Instead, any “materially adverse action” could constitute actionable retaliation. The Supreme Court explained the level of seriousness to which the employment action must rise before it becomes “adverse” and therefore actionable:

[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms…. The anti-retaliation provision … prohibit[s] employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

Thus, the key determination in whether an employer has subjected an employee to an adverse employment action is the distinction between material adversity and trivial harm.

A recent Sixth Circuit decision illustrates that courts continue to rely heavily upon the economic impact of the alleged retaliatory conduct in determining its material adversity. In Halfacre v. Home Depot, U.S.A., Inc., Halfacre’s performance evaluations changed significantly for the worse after he filed an EEOC charge. The Sixth Circuit reversed the district court’s grant of summary judgment to the employer on the retaliation claim, rationalizing that if a lower evaluation actually impacted the potential for raises or promotions, the bad review would constitute an adverse employment action.

In the words of the Supreme Court: “Context matters.” That context has been, and seems to remain, largely about economic impact.