Employees and retaliation: The Supreme Court giveth and the Supreme Court taketh away

by on June 26, 2013 · 0 Comment POSTED IN: HR Cafe
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For the past decade, the number of retaliation cases filed against employers has spiked — spurred in part by a key Supreme Court decision in 2006 that expanded the definition of what retaliation is.

Now, however, the nation’s highest court has taken a significant step in the other direction, with a retaliation ruling that is remarkably favorable to employers.

The court ruled this week that to prove an employer illegally retaliated against them, by, say, firing or demoting them, employees have to show that their “protected activity” (most frequently a complaint of harassment or discrimination) was the core reason for the adverse action against them.

Previously, an employee could win a retaliation case just by showing that their protected activity was one of the factors motivating the employer to act against them. The new standard, legal commentators believe, will make it considerably harder for employees to prove they suffered from retaliation.

‘But for’
The new legal standard for proving retaliation is known as a “but for” standard — i.e., the employee would not have been fired, or demoted, or whatever, “but for” her discrimination or harassment complaint. If an employer can prove, for instance, that the person was fired in part because her performance was poor, she’ll now have a hard time making a retaliation case before the courts.

Interestingly, making it harder for employees to make retaliation cases appears to have been an express motive behind the court’s new decision — on a narrow 5-4 vote — in the case of University of Texas Southwestern Medical Center v. Nassar.

The justice who wrote the majority opinion, Anthony Kennedy, noted that the number of retaliation cases filed with the EEOC had soared in recent years. From a figure of 22,690 cases in fiscal year 2003, retaliation cases have surged to 37,836 in fiscal 2012. And the number of retaliation lawsuits filed in the federal courts has followed a similar pattern.

The biggest surge occurred from fiscal 2007 to fiscal 2008 — EEOC cases went from 26,663 to 32,690 — which was shortly after the court’s landmark ruling in the Burlington Northern & Santa Fe Railway Co. v. White case. In that 2006 decision, the court redefined “adverse action” as anything that could dissuade a reasonable worker from making or supporting a charge of discrimination.

Since then, employees haven’t had to show that they were fired, suspended or demoted. It’s enough to show that, say, they were given harder or more unpleasant duties within their job description. Needless to say, this state of affairs has tended to tie employers’ hands when it comes to the day-to-day handling of employees.

A contrasting view
If the court felt it was redressing the balance in employers’ favor with its new retaliation ruling, that didn’t go down well with the four justices who voted the other way.

Writing the dissent, Justice Ruth Bader Ginsburg said the “but for” standard would hamper efforts to combat employment discrimination, because employees would now feel less protected in making discrimination or harassment complaints.

So strongly did Justice Ginsburg feel that this was wrong, she called on Congress to pass a law overturning the court’s decision.

Who’s a supervisor?
She said the same about another employment decision the court made on the same day, also by a 5-4 vote. In this one, Vance v. Ball State University, the court ruled that for purposes of employment discrimination lawsuits, a supervisor isn’t just someone who directs the activity of an employee. To be a supervisor, the person also must have the power to hire, fire, promote, demote or reassign the employee.

This is also an employer-friendly ruling, because employers are directly responsible when a supervisor commits harassment or discrimination, but only indirectly responsible when a line employee does so. (In the latter case, the employer is responsible only if the victim can prove the employer was negligent in failing to stop the harassment or discrimination.)

Under the new ruling, fewer people will qualify as supervisors. For example, an employee who makes a work schedule and tells other team members what tasks to undertake will probably not now qualify as a supervisor, unless she can also discipline or promote those team members.

What it all means
So what do these rulings mean, concretely, for line managers and HR people? Certainly not that you can now retaliate more freely against employees, or stand idly by while workers harass each other.

Here’s what we’d suggest:

  • In regard to the retaliation ruling, you can now discipline an employee who has complained of discrimination with more confidence IF you have carefully documented that person’s behavior or performance deficiencies. Documentation has always been important; now it becomes even more so. You want to be able to prove that the person’s behavior or performance was at least a factor in your action against them. If you can do that, you have a good chance of being in the clear should the case go to court.
  • In regard to the supervisor ruling, you may want to review your job titles and descriptions so that it’s perfectly clear who has the power to take employment decisions like hiring, firing, promotion and demotion. These people are the supervisors for whom you have direct liability if they harass or discriminate against someone. You don’t want eventual discrimination or harassment plaintiffs to be able to claim that somebody you consider a co-worker is actually a supervisor, due to any ambiguity in title or description.

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