Retaliation Unleashed. Is Your Organization Prepared? Tucker Spearman & Associates An EEO & Inclusion Management Company Retaliation Unleashed. Is Your Organization Prepared? Tucker Spearman & Associates An EEO & Inclusion Management Company Recent Supreme Court Decision on Retaliation Has Important Implications for Organizations’ Human Resources Officials and EEO Compliance Officers Overview Supreme Court Decision EEOC Significant Cases Danger Zones Retaliation Prevention Tools Elements of a Retaliation Claim 1. opposition to discrimination or participation in 1. opposition to discrimination or participation in1. opposition to discrimination or participation incovered proceedings covered prcoveroceedingsed proceedings 2. adverse action 2. adverse action2. adverse action 3. causal connection between the protected 3. causal connection between the pr3.otectedcausal connection between the protected activity and the adverse action activity and the adverse actionactivity and the adverse action Burlington Northern & Santa Fe Railway Co. v. Sheila White What issues did the Court consider? Does Title VII’s anti-retaliation provision confine actionable retaliation to activity that affects the terms and conditions of employment? How harmful must the adverse action be to fall within Title VII’s scope? Conflicts in the Circuits 5th, 8th 3rd, 4th, 6th 7th and District 9th Circuit/EEOC What did the Court analyze? 703(a) Substantive Provision It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; 704(a) Anti-Retaliation Provision It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. The Facts...Just the Facts • White, a “track laborer,” was the only woman working in the BNSF maintenance department. She operated a forklift. • White complained internally about gender discrimination and harassment and her forklift duties were taken away. • White filed a charge with the EEOC alleging gender discrimination and retaliation. • White was charged with insubordination and suspended without pay for 37 days. • White filed a grievance, no insubordination found ...reinstated and awarded full back pay. • White sued Burlington Northern for retaliation. • One-week jury trial.... $43,500 in damages plus medical expenses and attorney fees. What did the Court decide? Title VII’s anti-retaliation provision is not limited to retaliatory actions that affect an employee’s terms and conditions of employment or even to actions that occur in the workplace. Title VII’s anti-retaliation provision covers only those employer actions that would have been “materially adverse” to a “reasonable employee or job applicant.” What did the Court mean? Retaliatory Acts can extend beyond “workplacerelated or employment-related acts and harm.” Retaliatory Acts only include employer actions that would have been “materially adverse” to a “reasonable employee or job applicant.” Any retaliatory act that is sufficiently harmful that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Court Provides Examples Reassignment to a less attractive job Temporary suspension without pay Schedule change Exclusion from significant activities Court’s Limitations on Retaliation Claims • Reasonable Employee • Only “significant actions” can constitute illegal retaliation • Does Not Include “petty slights” or “minor annoyances” or “lack of good manners” Court’s Limitations on Retaliation Claims “Title VII is not a civility code for the American workplace.” Action must be materially adverse Depends upon the circumstances of the particular case Judged from the perspective of a reasonable person in the plaintiff’s position Consider ‘all the circumstances’ Retaliation Complaints 1992-2006 22,55511,096 25,000 18,750 12,500 6,250 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Percentage of All Complaints 29.8%15.3% Percentage of All Complaints 29.8%15.3% 1992-2006 30.0 22.5 15.0 7.5 0 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Significant Retaliation Cases 2006 •Osorio, et al. v. Source Enterprises, Inc. Jury Awards $14.5 Million For Retaliation 2006 •EEOC v. Associated Security Enforcement, Inc. Jury Awards $1.34 Million For Sexual Harassment & Retaliation 2004 • Shaub v. Federal Express Jury Awards Over $3.2 Million For Sex Discrimination & Retaliation 2003 • Denninghoff v. Bon Secours DePaul Medical Center, Inc. Jury Awards Over $4 Million To Former Manager For Retaliation Significant Retaliation Cases 2004 Settlement Morgan Stanley, the second-largest securities firm, agreed to pay $54 million to settle a sex-bias and retaliation suit, the first brought by the U.S. Equal Employment Opportunity Commission against a Wall Street investment bank. Implications of Burlington Northern & Santa Fe Railway Co. v. White? Not only a compliance issue but a management issue What are the implications? Danger Zones Danger Zones Changes in Duties •Transfers and Job Reassignments •Diminished Work Duties and Responsibilities •Increased Work Duties Danger Zones Other •Exclusion From Opportunities •Benefits •Work Life •Essential Functions •Reasonable Accommodations Danger Zones Complaint Resolution Process •Suspending or limiting access to an internal grievance procedure Surveillance •Closely monitoring work •Singling out the quality of performance Danger Zones Pre and Post-employment Retaliation Actions designed to interfere with individuals’ prospects for employment •Unjustified negative job reference •Refusing to provide a job reference •Informing the prospective employer about the individual’s protected activity Retaliation Prevention Tools • Has our organization given the issue of retaliation the appropriate level of attention it requires based on the Supreme Court’s holding? • What steps can be taken to significantly reduce the risk of having a claim of retaliation filed against our organization? • If a claim of retaliation is made, what factors can we point to, and confidently rely upon, to demonstrate our organization’s approach in preventing and addressing retaliation? Retaliation Prevention Tools • Audits/Assessment - High Risk Factors • Policy Review • Training • Investigations • Performance and Disciplinary Actions • Monitoring and Follow-up • Decision Making Protocol-Cross Divisional/Business Unit Thank You Tucker Spearman & Associates, Inc. www.tuckerspearman.com charles.spearman@tuckerspearman.com