U.S. Supreme Court Expands Employees' Ability to Claim Retaliation
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Title VII of the 1964 Civil Rights Act prohibits employers from retaliating against employees for making a complaint of discrimination. A recurring question in employment litigation is whether the employee has actually suffered “retaliation” after making a complaint, or something less significant that is not actionable.

Until yesterday, employers in Texas operated under an employer-friendly interpretation of the term “retaliation,” which required that employees show that they suffered an “ultimate employment decision” – e.g., a termination, demotion, pay cut, or failure to promote or hire – as a result of making a complaint. Anything less – such as a transfer to a comparable job, a poor performance review, or a paid suspension occurring after a complaint – typically did not establish “retaliation.” Retaliation cases have frequently been dismissed prior to trial because the employee could not meet this high standard.

In Burlington Northern & Santa Fe Railway Co. v. White, released yesterday, the Supreme Court defined “retaliation” much more broadly than had the Fifth Circuit (which covers Texas, Louisiana, and Mississippi). According to the Court, retaliation encompasses employer actions that are “materially adverse,” which the Court went on to describe as those actions which “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

The Court noted that whether a particular action creates liability will often depend on the specific context in which it occurred. For example, the Court said, a “supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”

This malleable, fact-specific standard suggests that many actions short of ultimate employment decisions now constitute “retaliation,” such as assigning less desirable job duties, schedule changes, exclusion from training opportunities, and other actions which may be adverse but do not necessarily lead to ultimate employment decisions.

In the wake of this decision, employers should be even more careful than before about treatment of employees who have made complaints of discrimination, as the Court’s new standard likely will make it harder for Texas employers to obtain dismissal of retaliation cases before trial.

* Muskat, Martinez & Mahony, LLP is a boutique firm specializing in labor and employment defense. For more information, visit our website at www.m3law.com