If It Dissuades a Reasonable Person From Complaining, It's Retaliation

2/1/2007

Last summer, the United States Supreme Court issued its opinion in Burlington Northern & Santa Fe Railway Co. vs. White, 126 S.Ct. 2405 (2006). As a result, it became easier for Minnesota employees to prevail on claims of retaliation against their employers.

Retaliation claims differ from discrimination claims in a number of significant ways. While “discrimination” involves adverse action based on an employee’s identity or status, retaliation or reprisal occurs when an employer takes an adverse action against an employee based on the employee’s conduct. Because any employee may engage in what is considered “protected conduct,” an employer must be careful not to make employment decisions which appear retaliatory.

There are many forms of retaliation which are illegal in Minnesota. For example, it is illegal to retaliate against an employee who takes advantage of his or her statutory rights, such as by filing for workers’ compensation benefits (Minn. Stat. § 176.82), or using their parenting leave (Minn. Stat. § 181.941), or inspecting their personnel record (Minn. Stat. § 181.964). It is also illegal to retaliate against an employee who is a “whistleblower” and reports or complains about illegal activity (Minn. Stat. § 181.931). And the Minnesota Human Rights Act prohibits employers from retaliating against an employee who complains about discrimination at work (Minn. Stat. § 363A.15). When it comes to a discrimination complaint, it doesn’t matter whether the employee is right or not. What matters in the eyes of the law is protecting the employee’s ability to invoke their rights. 

The prohibition against retaliation for complaints about discrimination has a federal counterpart in Title VII of the Civil Rights Act, which states:

Federal anti-discrimination laws prohibit an employer from firing or otherwise taking an adverse employment action against employees based on their race, color, religion, sex or national origin. But the anti-retaliation provision does not limit what kind of conduct might be considered retaliatory.

This distinction in the way the federal laws were worded was the focus of the Supreme Court in the Burlington Northern case. The plaintiff, Sheila White, was the only woman who worked in the Maintenance of Way department of the railroad. She operated a forklift, a more prestigious job than being a track laborer. When she complained about sexual harassment from her supervisor, she was disciplined and she was moved to a track laborer position. She complained about the reassignment, and was suspended without pay for being insubordinate. White was eventually reinstated, and she brought a retaliation claim against the railroad.

The lower courts held that White was not retaliated against because the reassignment did not involve a cut in pay, and she was eventually reinstated and given back pay after the suspension – therefore there was no negative effect on the terms and conditions of employment. This decision reflected the prevailing law in the Sixth Circuit, where White worked, and the Eighth Circuit, which includes Minnesota. But the Supreme Court disagreed. Citing the less-specific language of the statute, the Supreme Court held that retaliation included any adverse conduct which would dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern, 126 S.Ct. at 2415. The conduct did not need to be job-related, or result in a decrease in wages or benefits. The Court determined that the conduct experienced by White met this criteria, and rejected the more conservative tests used by some of the circuit courts.

Minnesota courts are guided by federal standards in applying anti-retaliation laws, and have just begun to apply this more inclusive standard. Employers, however, would be wise to carefully document any known acts of protected conduct – such as use of medical leave, or complaints about unfair treatment – including any follow-up actions taken. This is in addition to documentation supporting any adverse employment action, such as a demotion, termination, discipline, or reassignment, and the legitimate business reasons for the action. Again, it doesn’t matter if an employee’s complaint of discrimination is well-founded – the employer may not consider the employee’s conduct as a basis for taking an adverse action. Given the ramifications of the Burlington Northern decision, employers would be wise to carefully consider the timing of any proposed employment action if it follows on the heels of an employee complaint, and must train their managers and supervisors to be aware of employment actions that could be deemed to be retaliation.

This article was authored by Diane Odeen and Stacey DeKalb. For more information about this subject or for help in training your managers and supervisors, contact Diane Odeen at 612-336-9315 or diane@lommen.com or Stacey DeKalb at 612-336-9310 or stacey@lommen.com. You should consult legal counsel before making any attempt to apply the law or any information offered above to your own specific situation. Factual differences may result in substantial differences in the application of employment laws and each state has its own laws.