The Supreme Court recently gave employers and employees alike some guidance on what constitutes illegal retaliation. Retaliation claims -- in which a current or former employee claims to have been punished for complaining of discrimination or harassment -- have been on the rise in recent years. Statistics kept by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the laws that prohibit discrimination and harassment, show that almost one-third of all charges filed with the agency in 2005 included a claim of retaliation.

What Counts as Retaliation?

Despite the growing number of retaliation cases, however, courts around the country have had different ideas of exactly what retaliation is. Some courts have required employees to prove that the employer made an “ultimate employment decision” against them in order to win a retaliation case. In these courts, the employee had to show that he or she was fired, not promoted, denied a raise, suffered a pay cut, not granted leave, or had some other substantial change in the job’s terms to claim retaliation. Other courts held that retaliation can be any action the employer takes that might discourage the employee or other employees from complaining of discrimination or harassment. And still other courts adopted standards somewhere in the middle.

These conflicting standards left plenty of room for confusion: Is it retaliation if a manager stops socializing with an employee who files a complaint? What about changing the employee’s shift assignment, workspace, or job duties? When does an employer cross the line from everyday managerial decisions to illegal retaliation? How much -- and what kind of -- harm does the employee have to show in order to make a compelling case?

The Supreme Court Steps In

In the case of Burlington Northern & Santa Fe Railway Co. v. White (No. 05-259, 6/22/06), the Supreme Court provided some answers. The Court said that the employer’s actions must be “materially adverse” to a reasonable employee or applicant to qualify as retaliation. This means the employer’s actions have to be harmful enough that they could well deter a reasonable worker from complaining of harassment or discrimination. This interpretation was necessary, the Court said, to uphold the purpose of the law: to prevent employers from interfering with employees’ efforts to assert their rights under the laws that prohibit discrimination and harassment.

In the Burlington Northern case, Sheila White claimed that she was retaliated against for complaining about sexual harassment. After she told company officials that her supervisor had said that women should not be working in the department and had made other insulting, inappropriate comments, she was reassigned. She had been operating a forklift, but was assigned to perform standard track laborer tasks. She was told that a “more senior man” should get the forklift position, because it was cleaner and less arduous than the new work she was required to do.

Ms. White then filed a charge with the EEOC. Several days later, she was suspended without pay for insubordination. She challenged the suspension through internal grievance procedures. Eventually, the company found that she had not been insubordinate after all, and reinstated her with back pay. At that point, she had been out of work for 37 days. She added the unpaid suspension to her EEOC charge as another instance of illegal retaliation.

Burlington Northern argued that Ms. White hadn’t suffered retaliation. Because she had been paid retroactively for the time she spent on unpaid suspension, and because the other duties to which she had been assigned were still within her overall job category, the company argued that she couldn’t show that she had been harmed. The Supreme Court disagreed, however.

The Court found that Ms. White had been reassigned to a job that was less prestigious, less desirable, and more difficult. The Court also found that, although Ms. White had eventually gotten her back pay, having to go 37 days without income -- and without knowing whether she’d get her job back -- constituted retaliation. Both actions were sufficiently harmful to deter a reasonable employee from complaining.

Courts Must Consider All the Facts

The Supreme Court didn’t decide that particular actions always constitute illegal retaliation, and others do not. The Court emphasized that every case must be decided on the facts. For example, the Court pointed out that changing an employee’s shift might not be sufficiently harmful to constitute retaliation for some employees, but it could make life very difficult for a working mother who had to arrange childcare. The Court’s new standard requires courts to look at all of the circumstances to determine whether the employer’s actions are likely to dissuade an employee from enforcing his or her rights.

What lessons can employers and employees learn from this case? For employers, the answer is simple: Be very careful when dealing with an employee who has complained of harassment or discrimination. If you take any action to change that employee’s circumstances -- even if you don’t view the action as terribly harmful -- you could be inviting a retaliation lawsuit. For employees, the message is equally clear: The Supreme Court has reaffirmed employees’ rights to complain of harassment or discrimination without fear of negative consequences. If you are subjected to less favorable treatment because you have made a complaint, you should insist that the employer respect your rights -- and consider adding a retaliation claim to your original complaint.

If you are an employer or human resources manager and would like more information on handling employee complaints, see Preventing Retaliation Claims by Employees.