Avoiding payback Featured

7:00pm EDT November 25, 2007

According to Craig Snethen, a senior associate in the Pittsburgh office of Jackson Lewis, retaliation claims are not uncommon in the business world.

“We’re seeing them with some regularity, both independently as well as accompanying discrimination charges,” he says. And, because retaliation claims can be brought even where there is no discrimination, “they’re potentially more difficult to defend than the discrimination charges themselves.”

Snethen offered Smart Business readers some tips on understanding and avoiding retaliation claims.

What types of employee conduct do the anti-retaliation provisions of the civil rights statutes protect?

The scope of protection is very broad. The anti-retaliation provision of the major federal civil rights statutes protects those who participate in certain proceedings, the ‘participation clause,’ and those who oppose unlawful discrimination, the ‘opposition clause.’

What if an employee is mistaken in the belief that he or she has been discriminated against?

A retaliation claim can exist even when a discrimination claim has no merit.

The anti-discrimination provisions were designed to protect an employee based on who he or she is. The anti-retaliation provisions, on the other hand, were designed to protect an employee based on what he or she does. An employee doesn’t necessarily have to be right about the existence of discrimination. He or she must only believe, in good faith, that the activity is unlawful.

Can an employee cite discrimination against another employee as a reason for retaliation?

Yes. If an employee has an objectively reasonable good-faith belief that he or she has suffered a ‘materially adverse’ employment action by opposing the alleged discriminatory conduct or by participating in a formal investigation, he or she may maintain a claim for retaliation.

What types of employer conduct can support a claim of retaliation?

The types of conduct that can give rise to a retaliation claim have broadened considerably in recent years. Obviously, conduct that directly affects the terms and conditions of one’s employment — like discipline, demotion and/or discharge — can support a claim of retaliation in some cases. The anti-retaliation provisions now also include conduct outside the confines of the employment relationship that a reasonable employee would find to be materially adverse. So any action that might dissuade an employee from making or supporting a charge of discrimination may support a claim of retaliation.

In one instance, the Supreme Court ruled that an employee’s 37-day unpaid suspension and her reassignment from forklift operator to much dirtier, tougher duties were adverse or harmful. If these changes were caused by reporting unlawful discrimination in the workplace, it would support a viable claim for retaliation under Title VII.

Are there limits on the definition of retaliatory conduct?

The anti-retaliation provisions protect an employee only from conduct that produces an injury or harm. The Supreme Court speaks in terms of conduct that a reasonable employee would find ‘materially adverse.’ Therefore, claims based on petty slights, minor annoyances and simple lack of good manners generally are considered insufficient for charging discrimination.

However, there are few absolutes. Each case must be examined in context. In one decision, the court noted that a supervisor’s refusal to invite an employee to lunch is normally a nonactionable petty slight, but excluding an employee from a weekly training lunch that contributes to his or her professional advancement might be actionable.

What are some examples of a ‘trivial harm’?

In one case, a plaintiff was a route manager selling frozen food products door to door. She contended that her supervisor had punished her for reporting alleged discrimination by: criticizing her with a written warning notice for not soliciting enough potential new customers, denying her a route builder [a person who would cold-call noncustomers along her route], and failing to consider her claims of harassment and discrimination in a performance appraisal. The court of appeals found that each of the alleged punishments — even if they were true — would not give rise to a viable retaliation claim.

The United States Court of Appeals for the Third Circuit — the federal appeals court that covers Pennsylvania, New Jersey, Delaware and the Virgin Islands — has not yet addressed the ‘trivial harm’ exception.

However, two Pennsylvania district courts have. One found that failing to delegate an employee’s work to a temporary employee and failing to celebrate an employee’s birthday are minor and trivial and therefore do not support a charge of discrimination. Another found that the summary dismissal of the plaintiff’s allegations of discrimination does not support retaliation. It also found that dismissal of a complaint is not the type of ‘materially adverse’ action that would dissuade a reasonable worker from complaining in the first place.

CRAIG SNETHEN is a senior associate in the Pittsburgh office of Jackson Lewis. Reach him at snethenc@jacksonlewis.com or (412) 232-0196.