The Trivialization of Retaliation Law Continues . . .
By Ted Olsen
In almost every issue of our newsletter, we discuss how courts, employees and plaintiffs are treating the relatively minor actions of employers as unlawful "retaliation" under Title VII and other discrimination laws. This stems from the U.S. Supreme Court's decision in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), where the Court ruled that a retaliation claim did not require an "adverse employment action," particularly one resulting in an economic loss. Instead, a retaliation claim may be based on any employer conduct that "could well" dissuade a reasonable employee from engaging in protected conduct. See "Supreme Court Extends Title VII's Retaliation Protection to Employees Not Engaging in Protected Activity." Burlington Northern has invited plaintiffs to file charges and lawsuits over a wide range of personal (often petty and trivial) gripes. The latest example is Kennedy v. Virginia Polytechnic Inst. & State Univ., Civil Action No. 7:08-CV-00579 (W.D. Va. Feb. 8, 2011).
In Kennedy, one of the plaintiffs claimed Virginia Tech retaliated against her because she had protested sex discrimination. The university denied retaliation, as she had suffered no loss of pay, demotion, or any discipline, and had, in fact, received a raise. Nevertheless, the Court ruled that an actionable claim for retaliation had been stated because, among other things, the plaintiff felt she was given performance benchmarks that were too difficult or impossible to attain, and she was required to provide copies of her business trip receipts when the university lost the originals! The first alleged form of retaliation is raised by virtually all employees not meeting work expectations. As to the second alleged form of retaliation, there is nothing at all inappropriate about the university's request!
Due to these decisions, when an employee files a charge, complains of discrimination, or is involved in other protected activity, the employer must assume that virtually all events, actions and practices - even the most trivial and consistently-applied - will be fair game in a retaliation case.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
©2011 Sherman & Howard L.L.C. March 3, 2011