Strasburger Governmental Newsletter - Post-Burlington Policies and Procedures – Are You Set Up to Defend Retaliation Claims?

It has been nearly a year since the issuance of Burlington Northern & Santa Fe Railway Co. v. White, a United States Supreme Court decision which significantly expanded the scope of retaliation-based wrongful termination claims. During this time, prudent employers have been reassessing their employee handbook policies and internal employment procedures to set up effective lines of communication designed to prevent any unintended “retaliation” events and thwart potential retaliation claims. Employers who have not yet taken time to reevaluate and revise these areas need to do so.

Prior to Burlington, employment retaliation claims had already been on the rise. One source notes that, between 1992 and 2004, retaliation claims filed before the EEOC increased to more than one-quarter of the total amount of EEOC claims.¹ Yet, possibilities for dismissing retaliation claims outright through summary judgment were still strong, as the plaintiffs had to establish that they had suffered a “material adverse employment action” which, under Fifth Circuit precedent, required changes in the terms and conditions of employment. In short, pre-Burlington, only termination, demotion to a lower-paying position, or suspension without pay could definitively meet this “material adverse employment action” standard.

The Burlington case involved a “double” retaliation charge following the plaintiff’s complaint to her employer about a supervisor’s sexist remarks. The plaintiff filed an EEOC retaliation charge after being reassigned following her complaint. She filed a second EEOC retaliation charge after she was suspended for insubordination, even though her employer subsequently reinstated her and paid her backpay. On appeal, the United States Supreme Court held that, unlike language found in the anti-discrimination provisions of Title VII and other statutes, the anti-retaliation provisions of these statutes do not confine the forbidden actions and harms to those that are related to employment or occur at the workplace. Accordingly, no “employment-related” limitation exists, and an employer can retaliate against an employee “by taking actions not directly related to his employment or by causing him harm outside the workplace.”² The standard is, therefore, any act which might “dissuade a reasonable worker from making or supporting a charge of discrimination”³ and, whether an act would “dissuade a reasonable worker” is to be “judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”⁴

The problems arising from Burlington are clear – an increased scope of potential retaliation claims, resulting in an increased number such claims being filed and, because of the subjective nature of whether an act was “retaliatory,” a lesser chance for such claims to be dismissed through summary judgment. So, what should an employer have done over the past year, or be planning to do, to alleviate these problems? The simple answer is – create and utilize standardized communication procedures. Why? Because what might be viewed as a relatively benign employment action (such as removing an employee from a regularly-scheduled meeting because they are not prepared to present a report for the meeting) may take on a new significance, or inference of retaliation, if the employee has just filed a complaint. Thus, it is imperative that employee complaints be known rather than unknown. Needless to say, ignorance is not bliss in these situations. Determining where, when and how to create these channels, and consistently executing them, is not so simple. Here are a few tips:

Make sure your anti-discrimination policy includes anti-retaliation provisions.

Employee handbooks should unequivocally direct employees to bring all employment discrimination complaints to one person (such as the HR director), with one alternative if the initial source is the alleged wrongdoer.

If you have not already done so, it is important to require employees to report all employment grievances to one source, preferably the HR department. This helps eliminate the problem of employers learning, after they have already taken an employment action, that the employee supposedly “filed” a complaint with some manager simply by discussing the issue with him or her.

Internal employer manuals should unequivocally direct all managers, supervisors, or upper-level employees to bring all employment complaints to one person (such as the HR director).

Managers should immediately report to HR (or the designated source) any possible “reports” or “complaints” regarding employment discrimination. They should not try to handle it themselves or assume the employee will follow up with a report through the proper channels.

Maintain regularly-scheduled anti-discrimination/anti-retaliation training.

Routinely remind employees of your anti-discrimination policy’s notification channels and include references to its anti-retaliation provisions. Routinely remind supervisors and managers about the policies, emphasizing the need to avoid any retaliation and explaining the broad scope of what could be viewed as retaliation. Document your schedule of “reminders.”

Communicate (and preferably document) performance expectations early and often.

Communicate (and DEFINITELY document) performance problems early and often.

At least advise HR of employment decisions prior to executing them.

While you may not want to, and probably cannot, require HR approval for every employment action, anything that could arguably reflect poorly on the employee should, if possible, be communicated to HR. This communication requirement at least gives HR notice of impending action such that HR can advise of a current complaint, or advise whether similarly-situation persons were given different treatment in the past.

In sum, the best thing employers can do post-Burlington is make informed and supported employment decisions. Informed decisions demand consistent communication between supervisors/managers and the HR department. Establishing and executing consistent communication channels may seem like a significant time expense but, in the end, it will be the most cost-effective means to prepare for and defend any retaliation claims.

¹New York Times, Linda Greenhouse, "Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace," June 23, 2006).
²126 S. Ct. at 2409.
³Id. at 2411.
⁴126 S. Ct. at 2416. For example, as noted by the Court, "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children …" 126 S. Ct. at 2415 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998)).).