For the third time in five years, the United States Supreme Court has ruled on a claim of unlawful retaliation in the employment discrimination context. Yesterday, the Court handed down its decision in Thompson v. North American Stainless, LP, No. 09-291, U.S. Supreme Court (January 24, 2011). And also for the third consecutive time, the Supreme Court has sided with the aggrieved employee, and expanded retaliation protections for individuals.
Pre-Thompson - Understanding Burlington Northern and Crawford
Before I give you the highlights of the Thompson decision, let's quickly review the two prior cases:
- In the 2006 case Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court took up the question of what kind of allegedly punitive conduct constitutes "adverse action" sufficient to support a claim for retaliation under Title VII. The court adopted an expansive definition of "adverse action" - making it far easier for plaintiffs to pursue retaliation claims. It held that illegal retaliation occurs whenever a manager engages in conduct which has the effect of discouraging a "reasonable employee" from making a discrimination complaint. Plaintiffs need not show that the alleged retaliation significantly impacted a term, condition, or benefit of employment.
- In the 2009 case Crawford v. Metropolitan Gov't of Nashville and Davidson County, the Supreme Court considered how far anti-retaliation protections reach and who can bring retaliation claims. This time, the plaintiff was interviewed as part of her employer's investigation of a discrimination claim brought by another employee. Though the plaintiff admitted she had not herself been the target of any discrimination, she later brought her own retaliation claim. She claimed that her employer had taken adverse action against her because the information she disclosed in the investigation had corroborated the other employee's discrimination complaint.
The Crawford court considered whether plaintiffs must first allege that they suffered discrimination before claiming that they suffered retaliation. It held they did not. Broadly construing Title VII, the court held that the act of reporting inappropriate behavior during the investigation constituted protected action. Accordingly, adverse action taken in response to such reporting could constitute retaliation. On remand for further proceedings, the plaintiff was awarded an attention-grabbing $1.5 million.
The Thompson Decision
Turning to Monday's ruling in Thompson, the Court considered whether the fiancé of an employee who filed a sexual discrimination claim against the company, could bring a claim of unlawful retaliation when he was fired by that same employer three weeks later. In a unanimous decision, the Supreme Court ruled that Thompson could bring a claim of retaliation even though he wasn't the one who brought the underlying sexual discrimination claim. He also didn't participate in an employer investigation of the sexual discrimination claim. In reaching this decision, the Court built off the broad definition it had announced in Burlington Northern, and concluded that it is "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." As a result, the Court held that the fiancé should be protected and could bring his own retaliation claim.
What Should Employers Do?
For years we have been imploring employers to manage the risk of retaliation claims by both updating their policies and actively training managers on how to avoid retaliation risks.
With this new Supreme Court decision and an even more expansive definition of retaliation, it is more critical than ever to take proactive steps to help your organization avoid claims of retaliation.
So what should employers do to manage this increasing risk?
1. Adopt Strong Anti-Retaliation Policies. Employers should review and update existing anti-retaliation policies and make sure they are not just buried at the end of an employee handbook. Retaliation claims are real, rising, and can be very expensive. Your managers need to know that you have strong anti-retaliation policies and that you expect them to be followed.
2. Train Your Managers. Training managers on how to recognize and avoid potential retaliation claims is absolutely critical. Managers consistently struggle with the topic and are understandably confused by rules that often seem counterintuitive. Very few managers understand that a retaliation claim can be brought separately from a claim of discrimination, and that even if a claim of discrimination is unsuccessful / unfounded, a retaliation claim can survive. High quality training should show managers how to respond to employee complaints, the many ways retaliation can occur, and - most importantly - the need to seek guidance after a complaint is made.
NAVEX Global provides a monthly resource – Compliance Communicator – for you to use (free of charge) to remind your middle management of company policies, procedures and guidelines for handling common workplace compliance issues. (Sign up to receive Compliance Communicator)
3. Make Anti-Retaliation Training a Priority. Retaliation training is too often relegated to the last five minutes of training sessions - just as managers begin to head for the door, or an online training program wraps up with a final conclusion screen. That is simply not good enough, especially in light of the growing prevalence of retaliation claims.
Employers need to recognize that retaliation claims represent a significant legal risk, and allocate the same time and training resources devoted to other key compliance areas, like sexual harassment training. In addition, discussions about retaliation issues should be made part of the standard curriculum for any manager training concerning employment compliance topics.