Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.

One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.

In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

Motion to Dismiss Under Rule 12(b)(6)

The important thing to understand about the appeal to the WV Supreme Court is that the defendants immediately filed a motion to dismiss (under Rule 12(b)(6)) based only on the complaint filed by Ms. Roth–there was no evidence that had been accumulated through depositions, affidavits, and the like. The basis for the motion to dismiss was that Ms. Roth had “failed to state a claim upon which relief may be granted.” That motion is based solely “on the pleadings”, and is based on no other evidence.

A motion to dismiss on the pleadings must assume the truthfulness of the allegations in the plaintiff’s complaint, and argues roughly this: even if everything the plaintiff says is true, she still can’t win, because there is nothing about those allegations that would allow her any recovery in court.

Let’s use this as an example to illustrate a motion to dismiss on the pleadings (under Rule 12(b)(6)):

• Suppose my boss fires me, and hands me a notarized resolution issued by the board of directors of my corporate employer saying: “We hereby fire Drew M. Capuder because his socks don’t match. We hate people that can’t clothe themselves with minimal competence. We infer from that characteristic that such people are incompetent employees. Furthermore, we, the board of directors and management of Drew’s employer, harbor an intense personal hatred for such people. We fire Drew with the greatest joy and abandon.” My boss hands me the board resolution and says “you’re fired, and the company security will escort you out immediately”. I say to my boss, “that’s discriminatory”. My boss replies: “Of course it is–we despise people who can’t dress themselves properly”. My boss, who recorded the termination meeting, then hands me a nicely packaged CD recording of the termination meeting as the company security guard quickly ushers me out of the building.
• I file suit for discrimination and wrongful discharge. I initiate the lawsuit by filing a document called a “complaint” which sets out a brief statement of the facts and the legal theories on which I am relying.
• My employer’s defense counsel looks at my complaint, and says to herself: “I don’t have to answer this silly-assed lawsuit. I will file a motion to dismiss, because there is nothing about Drew’s idiotic allegations that our legal system recognizes as valid legal claims”. So the defense lawyer files a motion to dismiss, based only on the allegations in my complaint, under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. This is the same kind of motion that the defendants filed against Ms. Roth.
• The trial judge reviews the motion to dismiss and my response. The trial judge then takes about 6 nanoseconds to decide that the defendant’s motion should be granted, and–bada bing!–my case is dismissed. This is the same type of decision which the judge made in Ms. Roth’s case (and the correctness of that decision was the issue on appeal).
• The trial judge in my case made the correct decision because, assuming (for purposes of the motion to dismiss) everything I said in my complaint was true, there is nothing about those allegations that establishes any sort of recognized claim for wrongful discharge. In other words, my complaint would not allow me to win in court. It’s as simple as that.
• Contrary to some popular understanding, the law does not prohibit all forms of employment discrimination. The law only prohibits employment discrimination in which the employer’s decision is based on protected characteristics. Those characteristics include race, age, gender, national origin, disability, and religion (and there are other characteristics like certain types of whistle blowing, military service, jury duty, etc.). So if my employer discriminates against me because my socks don’t match, there is nothing about being a fashion moron that constitutes a protected characteristic. My employer is free to lawfully discriminate, and make adverse employment decisions, on that basis. The point of the motion to dismiss in Ms. Roth’s case was that there was nothing about her allegations that involved discrimination based on her sex (gender)–and that was the main issue under review on appeal.

Standards for Dismissal Under Rule 12(b)(6); Iqbal is Rejected

When an employer (or any other defendant) is trying to dismiss a lawsuit under Rule 12(b)(6), the deck is stacked in favor of the employee in the sense that this will be a decision based on only the sufficiency of the allegations in the complaint. The WV Supreme Court has applied these rules in scrutinizing the adequacy of the complaint:

• “liberally construe the complaint so as to do substantial justice”;
• keep in mind that “the preference is to decide cases on their merits”;
• “construe the complaint in the light most favorable to the plaintiff, taking all the allegations as true”;
• dismiss the complaint only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”, and
• the rules concerning pleadings require that the complaint  merely give “fair notice” of the allegations, and the complaint itself is “not required to set out facts upon which the claim is based”.  (This principle arises out of Rule 8(a) which states that a complaint shall contain a “short and plain statement of the claim showing that the pleader is entitled to relief”. Rule 9(b) then states that allegations of “fraud or mistake” shall be stated “with particularity”, but that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” The comparable federal Rule 8(a) was the basis for the US Supreme Court in 1957 formulating the “notice” concept for pleadings in Conley v. Gibson, 355 U.S. 41 (1957).)

This last item, the “fair notice” requirement, is key to understanding this case and dismissal motions under Rule 12(b)(6). The point of the complaint in West Virginia is to give “fair notice” of the allegations, and it is not required to set out the allegations in more detail. The “more detail” is something that the parties explore under the “discovery phase” of the lawsuit when documents are requested, depositions are taken, etc.

The US Supreme Court has recently adopted a more stringent system for evaluating complaints in the Rule 12(b)(6) context (the feds have the same rule), with the decisions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face.

The US Supreme Court held that “bare assertions” are not entitled to be accepted as true in evaluating a motion to dismiss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFeliceCare, Inc., on the other hand, rejected the “more stringent” federal requirement, and stuck with the “fair notice” principles.

The Iqbal decision was a 5-4 split, and has generated a good bit of controversy. Members of Congress have taken steps toward legislatively overturning it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in committee, and hearings have been conducted by the House Judiciary Committee. The Bill has not emerged from the Judiciary Committee. In the Senate, a comparable bill called the “Notice of Pleadings Restoration Act of 2009” (S. 1504) has been introduced, and it has not emerged from the Senate Judiciary Committee. Both of these bills would return federal law to the “notice pleading” principles formulated in Conley v. Gibson, 355 U.S. 41 (1957).

Roth’s Hostile Work Environment Claim

The trial court dismissed Ms. Roth’s claim for hostile work environment, which includes claims for sexual harassment.

To “establish a claim for sexual harassment based upon a hostile or abusive work environment” under WV Human Rights Act, the plaintiff must prove

• 1. The subject conduct was unwelcome,
• 2. It was based on the sex of the plaintiff,
• 3. It was sufficiently severe or pervasive to alter the [plaintiff's] conditions of employment and create an abusive work environment, and
• 4. It was imputable on some factual basis to the employer.

The key element for this appeal was the second element. The trial court determined that the weird circumstance described by Ms. Roth in her complaint, when she allegedly stumbled into an area where her boss and another female employee were in some sort of sexual activity, was not any sort of hostile work environment that was “based on the sex of the plaintiff” (element 2 above). (For this purpose, the courts use “sex” and “gender” interchangeably.)

The WV Supreme Court’s opinion discussed whether these allegations could form the basis for a hostile work environment “based on sex“, and Justice Ketchum’s dissent discusses that as well. I am a bit confused by the Court’s opinions (the majority and the dissent) because some of the analysis seems to assume that the only the facts alleged in support of a hostile work environment are the facts relating to the episode of the boss allegedly being in sexual activity with a female coworker. However, the Supreme Court’s opinion makes it clear that there were significant other allegations that supported a claim for hostile work environment:

Defendant DeFeliceCare authorized, directed and acquiesced in the allowance of pervasive, explicit and habitual harassment which included but is not limited to: subjecting [Ms. Roth] to such sexually explicit conduct, threats of loss of license, loss of employment and termination for unwanted sexually explicit conduct she observed.

The key language in that portion is a “pervasive, explicit and habitual harassment which included but is not limited to” the boss’s alleged sexual activity with the coworker described in the complaint. Based on notice pleading requirements, and if the issue is whether the complaint puts the defendant on notice concerning a claim of hostile work environment or sexual harassment, that allegation alone should end the argument. In other words, there were allegations that there were sexual activities creating a hostile work environment above and beyond the episode involving the boss and coworker.

Another allegation in the complaint that is relevant to this issue is:

Ms. Roth was “subjected to improper and sexually explicit conduct by her superiors including the president and CEO Defendant DeFelice… thereby creating a hostile and abusive environment for employment”.

Again, that is clearly making allegations of a hostile work environment that involve superiors other than Mr. DeFelice. So the complaint’s allegations of hostile work environment were not limited to the boss/co-worker-being-partially-undressed episode.

Ultimately,  the WV Supreme Court concluded that Ms. Roth’s allegations in her complaint were sufficient to satisfy the pleadings requirements for a hostile work environment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sexual Harassment

Ms. Roth also alleged that she was terminated because of the sexual harassment. This is a claim under the WV Human Rights Act for what is generally known as “quid pro quo sexual harassment”, which involves an allegation that a tangible employment decision—here, termination—was related to the sexual harassment. For such a claim, the plaintiff must prove that she was a member of a protected class (here, female), that there was an adverse employment decision (here, termination), and that “but for the plaintiff’s protected status, the adverse decision would not have been made.”

The trial court also dismissed this claim, again on the theory that the complaint did not present any allegation that the termination was based on Ms. Roth’s sex. The WV Supreme Court disagreed and reversed this decision.

The WV Supreme Court discussed whether Ms. Roth’s encounter with her boss and coworker, and the subsequent termination, could be considered “based on the sex” of Ms. Roth, and described a statement made at oral argument by the plaintiff’s attorney, to the effect that a woman might have been fired, and a man might have been retained under the circumstances, because men might view such sexual activity as something to be “admired” (so by inference, there would be no termination), but a woman employee might be disadvantaged under comparable circumstances. The Court described that theory as “speculative at best”, and then focused on what was the real issue: “whether the appellants’ complaint was “sufficiently pleaded”.

For Ms. Roth’s discrimination claim over her discharge, on the issue of whether her discharge was based on her sex, a relevant allegation was that Mr. DeFelice fired Ms. Roth stating that “he did not like how she dressed” and “he did not like the style/color of her hair”. That seems to me to be a pretty gender-based reason for termination (again, that is Ms. Roth’s allegation, and it must be accepted as true in this procedural context).

Ms. Roth’s Claim Discharge in Violation of a Substantial Public Policy

Ms. Roth also alleged wrongful termination under the doctrine first announced by the WV Supreme Court in Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where termination will be actionable if the “motivation” of the employer “is to contravene some substantial public policy principle.” That doctrine has been applied in a number of settings, including whistleblower circumstances, situations where an employee invokes a right such as self defense (in the setting of a store robbery), privacy rights under some circumstances to refuse drug tests, and situations where the employee is terminated because of some testimony in a legal proceeding.

The trial judge decided that the facts did not support any conclusion that there was a “substantial public policy” that the employer was trying to “contravene”.  The WV Supreme Court disagreed and reversed on this decision as well.

Ms. Roth submitted the following three alleged “substantial public policies” at issue which she claimed made the termination unlawful, and the trial court rejected all of them. The WV Supreme Court concluded that the second and third policies could be viable, so that it reversed the decision to dismiss this wrongful discharge claim under the Harless doctrine:

• First: the plaintiff invoked West Virginia statutes concerning public nudity, and the trial court dismissed that as a relevant substantial public policy; and the West Virginia Supreme Court agreed.
• Second: Ms. Roth contended that the sex discrimination and sexual harassment laws under the WV Human Rights Act created substantial public policies, and the West Virginia Supreme Court has previously made it clear under the Harless doctrine that those statutes in fact established substantial public policies which could form the basis of a wrongful discharge claim. However, the trial court implicitly rejected that theory—the trial court didn’t expressly discuss it. The West Virginia Supreme Court disagreed, based on the analysis that I have described above in discussing the hostile work environment claim. This policy and the next (third) policy were raised by Ms. Roth’s counsel in her opposition to the motion to dismiss, and the WV Supreme Court said the trial court should have addressed them in reaching its decision. In other words, the trial court should not have limited its consideration of potential public policies to those described in the complaint.
• Third: Ms. Roth alleged that there was another lawsuit by another female employee for sexual harassment that preceded her own, and in that lawsuit, there had been allegations of a sexual relationship between Mr. DeFelice and the co-worker that was in a state of partial undress with Mr. DeFelice when Ms. Roth walked in right before her vacation. In that other lawsuit, there had been testimony denying the relationship between Mr. DeFelice and the (partially clothed) co-worker. Thus, Ms. Roth had the potential for having testimony in that other lawsuit that could have contradicted the testimony that Mr. DeFelice and the other co-worker were not involved in any sort of relationship. Ms. Roth’s lawyer alleged that DeFeliceCare was violating a substantial public policy in potentially terminating Ms. Roth for her possible testimony in that other lawsuit. The trial court rejected this theory, but the West Virginia Supreme Court disagreed, and concluded that this was a viable theory for a “substantial public policy” being violated. In other words, Ms. Roth’s theory was that she was fired because her observation of the sexual encounter between Mr. DeFelice and the coworker could have been damaging to Mr. DeFelice and his company in that other lawsuit, such that Mr. DeFelice was motivated to terminate Ms. Roth.

So the WV Supreme Court thought the second and third theories above constituted substantial public policies so the dismiss of the Harless claim was inappropriate.

Ms. Roth’s Claim for Retaliation

Ms. Roth also alleged retaliation under the West Virginia Human Rights Act. Retaliation under that Act required that Ms. Roth engaged in some “protected activity” either in the form of (a) opposition to discriminatory behavior, or (b) in the form of participating in connection with some proceeding under the Act. As far as I can tell, the only protected activity alleged by Ms. Roth was the “opposition”, so that was the only type of  protected activity discussed in the WV Supreme Court’s opinion.

The “opposition” protected activity includes “opposition to a practice that the plaintiff reasonably and in good faith believes violated the provisions” of the WV Human Rights Act. The opposition

“must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and must be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have engaged in a protected activity if she complained about being sexually harassed.”

The trial court dismissed this claim, and the WV Supreme Court agreed because Ms. Roth had never “engaged in any protected activity”. She had simply never done anything to express any opposition to any of the sexual conduct she claims to have experienced or heard about.

Ms. Roth’s Claim for Intentional Infliction of Emotional Distress

Ms. Roth also alleged a claim for “intentional infliction of emotional distress“, which is an extremely hard claim to prevail upon in an employment setting. The WV Supreme Court described the claim this way:

One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for bodily harm.

The conduct must be

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

Wow, that sounds tough to satisfy, especially in the workplace, and there are relatively few cases in which plaintiffs have succeeded on that theory. But keep in mind that the issue for purposes of the Supreme Court’s decision was whether Ms. Roth’s pleadings were sufficient to support this claim. The trial court had focused on the fact that there was no allegation that the employer had terminated Ms. Roth in an “outrageous manner”.

But the West Virginia Supreme Court disagreed, and said that the following allegations in the complaint were sufficient::

• 1. Mr. DeFelice called Ms. Roth and asked her to come to the office, and when she complied with that request she was placed “by her employer into unwantedly observing Mr. DeFelice Ms. Kelly in a sexually compromising position.”
• 2. Because of that observation, Mr. DeFelice “threatened” Ms. Roth “not only with termination from her employment, but with possibly losing her respiratory therapist license, which was her means of making a living.”
• 3. Ms. Roth was then terminated “within the same week”, allegedly because Mr. DeFelice “did not like how she dressed or the style and color of her hair.” (The Court thought it was significant that there was a close proximity in time for these allegations.)

Again, this is not the same thing as saying these allegations alone, without any other evidence, would satisfy the requirements for intentional infliction of emotional distress at trial. but it is to say that, with these allegations in the complaint, the Court could not conclude “beyond doubt” that Mr. Roth “can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Thus, the WV Supreme Court reversed the trial court’s decision to dismiss the claim for intentional infliction of emotional distress.

Written by Drew M. Capuder (contact information); Voice: 304-333-5261

I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.

NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s "no blood no foul" rule.

The NBA’s "No Blood No Foul" Rule

If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the "standard" by which the referees decide how much contact will result in a personal foul being called. It’s the "no blood no foul" rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the "no blood no foul" rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify "contact". So the appearance of blood is a more "objective" indication that the contact really mattered and really constituted an unfair interference with the other player.

The Supreme Court Struggles With "When is There a Foul"?

Courts for years have struggled with the employment discrimination equivalent of the "no blood no foul" rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.

Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.

Three Approaches on Whether There is a Discrimination Foul

Before the supreme court’s decision in Burlington Northern, the courts had struggled over, in effect, how much blood to require, or even whether to require any blood at all.

We need to put aside, for the moment, claims involving a hostile work environment. In such claims, there is no “blood” requirement. The courts recognize claims for hostile work environment, and will award damages, even where there is no economic consequence, as long as the plaintiff proves that the environment issue was severe or pervasive enough so as to interfere with what he an employee’s work environment. That situation, where the courts do not require any economic consequence, is the exception rather than the rule.

So for retaliation claims, the courts have historically adopted three different tests for determining the minimal level of severity required before the court will recognize a claim for the employee. The following options start with the most severe level of misconduct the rough equivalent of blood veritably gushing out of the NBA player:

First, some courts have only recognized a claim if there had been an "ultimate employment decision" in retaliation for an employee’s opposition to discriminatory conduct. "Ultimate employment decisions" are things like hiring, granting leave, discharging, promoting, and compensating.

Second, moving down in terms of the level of severity, some courts had recognized a claim where there had been an "adverse effect" on the "terms, conditions, or benefits" of employment. That is a broader test because it encompasses conduct by the employer that is on a lower level than the "ultimate employment decisions." For example, suppose an employer negatively evaluates an employee so that the negative evaluation results in a lower raise. Under the "ultimate employment decision" standard, a performance evaluation does not ring the bell. But under the standard of an adverse affect on the "terms, conditions, or benefits" of employment, the negative evaluation would be included, potentially providing the support for the claim of retaliation.

Third, some courts have abandoned any blood requirement at all. The Supreme Court recognized that there was a different rule in terms of the requirement for a specific level of severity between the substantive discrimination provision of Title VII and the retaliation provision. Economic consequence was required under the substantive discrimination provisions, but not under the retaliation provision. This distinction was tied closely to the different language in the prohibition sections on discrimination and retaliation.

Substantive Prohibitions Versus Retaliation Prohibitions

Since this third approach is tied closely to a carefully reading of Title VII’s retaliation provision, let’s look at the difference between the substantive and retaliation provisions in Title VII (and a good but of the Supreme Court’s analysis in Burlington Northern v. White was based on the difference between these provisions).

Section 703(a) of Title VII contains the substantive anti-discrimination 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

The anti-retaliation provision of title VII, in section 704(a), has a different prohibition provision: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment 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 any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

The Supreme Court in Burlington Northern v. White noted that the key words in the substantive provision "hire," "discharge," "compensation, terms, conditions, or privileges of employment," employment opportunities," and "status as an employee" "explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision." This is at pages 2411-2412.

"The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provisions seek to prevent harm to individuals based on what they do, i.e., their conduct."

The Supreme Court recognized that the language in the retaliation provision was not limited to conduct in the workplace. "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Examples that the court noted, from earlier decisions, were: an employee of the FBI complained, and the FBI retaliated by refusing to investigate death threats a federal prisoner had made against the employee. Another example: the employer filed false criminal charges against a former employee who complained about discrimination.

"A provision limited to employment-related actions would not deter the many forms of effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s "primary purpose", namely, "[m]aintaining unfettered access to statutory remedial mechanisms."

Thus, "the purpose reinforces what language already indicates", that the "anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment."

Key Ruling: "Materially Adverse" Action

The Supreme Court posed the issue as addressing "the level of seriousness to which this harm must rise before it becomes actionable retaliation." The Supreme Court agreed with the Seventh and District of Columbia Circuits. The Supreme Court concluded that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination"".

The Supreme Court said that it described the rule in terms of "material adversity" to separate "significant from trivial harms." There is no "general civility code for the American workplace." The "ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" must be filtered out of the universe of claims that the courts will recognize. The law will not "immunize" the employee from those "petty slights or minor annoyances that often take place at work and that all employees experience." "Personality conflicts at work that generate antipathy and snubbing by supervisors and coworkers are not actionable" under Title VII. So "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence."

The rule was stated in terms of a "reasonable employee" because the "standard for judging harm" must be "objective." An objective standard is "judicially administrable." That standard avoids the "uncertainties and unfair discrepancies" that can "plague a judicial effort to determine a plaintiff’s unusual subjective feelings."

"Materially Adverse" Action versus "Petty Slights"

The court gave further examples of how to distinguish between "petty slights" and "material" changes that might deter a reasonable employee from complaining about discrimination. For example, while a "schedule change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a young mother with school age children." The court cited one example of an employee with a disabled child needing flex-time scheduling.

The supervisor’s refusal to invite an employee to lunch is normally trivial. But to retaliate by "excluding an employee from the weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination." The court noted that whether action is significantly adverse "will often depend upon the particular circumstances. Context matters." An act that would be "immaterial in some situations is material in others."

The standard is tied to the "challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint."

The key in examining the employer’s challenged retaliatory action is to "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination."

In the case, the employee had been assigned from forklift duty, which was considered desirable, to standard track labor tasks.

"Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spent more time performing the more arduous duties and less time performing those that are easier or more agreeable." Thus, one of the categories of adverse retaliatory action that did not require financial consequence was "unpleasant work assignments."

However, reassignment of job duties is not "automatically actionable." Whether a particular reassignment is "materially adverse" "depends upon the circumstances of the particular case" and should be judged from the "perspective of a reasonable employee in the plaintiff’s position, considering all the circumstances."

The court also found that the fact that the employer suspended White for 37 days with no pay was a materially adverse action, even though the lost income was later paid to the employee. An "indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay."

Justice Alito’s Concurring Opinion

Justice Alito wrote a concurring opinion in which he concurred in the judgment. He would have applied the conventional requirement that the adverse employment action must constitute a "tangible employment action", and he thought the reassignment to the substantially less desirable position and duties constituted such an "adverse employment action."

He was concerned about part II-D of the Court’s opinion, in which the court concluded that the only threshold requirement was materially adverse action that would dissuade a reasonable employee from complaining about discrimination. He thought that test was unnecessary, and that the court should have employed the test requiring some tangible effect on the compensation, terms, conditions, or privileges of employment.

Justice Alito describes a number of policies (“purposes”) behind the anti-retaliation provision in Title VII: (1) preventing employers from engaging in retaliatory measures which will dissuade employees from engaging in protected activity, and (2) prevent harm to individuals that assert their rights.

The Take-Away Rules in Burlington Northern v. White

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to an employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Finally, Back to the NBA

After all of this legal stuff, grab a beer and watch the NBA’s play of the day:

Finally, but only if you are hardcore NBA fan, read the NBA’s Rule 12, Part B on "Personal Foul", under Section I "Types". This will give you the NBA’s real rule on personal fouls:

Prepared by Drew M. Capuder (contact information)

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

Although all 3 of those employees reported, in response to questions by Metro’s human resources investigator, sexually offensive behavior by Mr. Hughes, none of them initiated any sexual harassment complaint themselves.

As a result of its investigation, Metro took no action against Mr. Hughes, the harasser. On the other hand, Metro fired Ms. Crawford and the other two employees who answered the HR employee’s questions–all 3 were fired shortly after the investigation into Mr. Hughes was concluded. Ms. Crawford had been employed at Metro for 30 years.

Case Dismissed: Ms. Crawford Didn’t "Oppose" Sexual Harassment

Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission, and then filed suit in federal court in Tennessee, claiming she had been fired in retaliation for her reporting of Mr. Hughes’ sexual harassment.

The Trial Court dismissed her lawsuit, and the US Court of Appeals for the Sixth Circuit affirmed the trial court’s decision. The Sixth Circuit agreed that the lawsuit should be dismissed because Ms. Crawford did not initiate her own sexual harassment complaint, but instead simply responded to questions initiated by Metro in Metro’s investigation into the rumors about Mr. Hughes.

Supreme Court Reinstates Ms. Crawford’s Case, Defining "Opposition"

The US Supreme Court concluded that Mr. Crawford satisfied the retaliation provision of Title VII and reinstated her case. This is why.

Title VII‘s retaliation provision, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice for an employer to discriminate against" an employee because:

• the employee has "opposed any practice made an unlawful employment practice " by Title VII (this is called the "opposition clause"), or
• the employee has "made a charge, testified, assisted, or participated" in any "investigation, proceeding, or hearing" under Title VII (this is called the "participation clause").

In addressing the "opposition clause": The Sixth Circuit concluded Ms. Crawford didn’t "oppose" any discriminatory practice because she didn’t file any complaint herself, and because "opposition" requires "active, consistent" opposition activities. Merely responding to the HR employee’s questions, according to the Sixth Circuit, was not "opposition", so the employer was free to take adverse or retaliatory action against Ms. Crawford. The US Supreme Court rejected this reasoning, as I will discuss below.

The Sixth Circuit also addressed the "participation clause" and concluded Ms. Crawford had no protection against retaliation because she had not "participated" in any complaint proceeding under Title VII. The US Supreme Court did not address this ruling.

The US Supreme Court rejected the Sixth Circuit‘s reasoning on the "opposition clause" and reinstated Ms. Crawford’s case.  The US Supreme Court said the word "oppose" in Title VII should be given its "ordinary meaning", in part based on a dictionary definition, to "resist or antagonize", or to "contend against; to confront; resist; withstand".

The US Supreme Court easily found that Ms. Crawford’s responses to the HR employee’s questions constituted "opposition" to Mr. Hughes’ sexually inappropriate behavior. There was "no reason to doubt" that a person can "oppose" by "responding to someone else’s question just as surely" as by "provoking the discussion", and nothing in Title VII requires a "freakish rule" ("ouch!!" says the Sixth Circuit) protecting an employee who "reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question".

Because the US Supreme Court found Ms. Crawford’s case should be reinstated because she satisfied the "opposition clause," the US Supreme Court did not address the question of whether her statements satisfied the "participation clause".

Justices Alito and Thomas, in their opinion concurring in the result, agreed with the "primary" rationale in Justice Souter‘s majority opinion, but were concerned that some of the language in the majority opinion (referencing part of a dictionary definition) could protect an employee who "silently" opposed discriminatory behavior. They thought there would have to be some public manifestation of the opposition, and they thought Ms. Crawford did so.

Prepared by Drew M. Capuder (contact information)

The Gap In the Federal Employee Section of the ADEA

This was the problem under the ADEA: The ADEA‘s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the "private and state employee sections".

To address age discrimination against federal government employees, the ADEA has a separate section, 29 U.S.C. § 633a, which contains a separate statement of the prohibitions against age discrimination. While the private and state employee sections of the ADEA contain expressly an anti-retaliation provision (29 U.S.C. § 623(d)), the federal employees section does not. The original ADEA was passed in 1967, but the federal employees were not covered until the statute was amended in 1974 to cover them.

So that gets us to US Postal Service employee Myrna Gomez-Perez in Puerto Rico, who asked for a transfer. The transfer was refused so she filed a complaint of age discrimination (she was 45). After she filed the age discrimination complaint, she claimed she was subjected to various forms of retaliation. So she eventually filed suit in the United Stated District Court for the District of Puerto Rico, claiming retaliation. Ms. Gomez-Perez’s lawsuit was dismissed for a different reason (sovereign immunity), and she then appealed to the US Court of Appeals for the First Circuit ("First Circuit"). The First Circuit ruled in her favor on the sovereign immunity issue, but said her case was properly dismissed for a different reason–she was a federal employee and the ADEA‘s federal employee section (29 U.S.C. § 633a) did not prohibit retaliation. Under the First Circuit‘s logic, nothing ADEA prohibited retaliation against federal employees.

The US Supreme Court Fills the Gap

So Ms. Gomez-Perez appealed to the US Supreme Court, which ruled that the federal employee section of the ADEA prohibits “discrimination based on age” (29 U.S.C. § 633a(a)), and that implicitly prohibits retaliation that arises out of prior complaint of age discrimination. The controversy between the majority opinion and the dissenting judges was whether it was appropriate to read into the age discrimination prohibition a corresponding prohibition for retaliation related to an age discrimination complaint. The majority relied on prior decisions which had done precisely the same thing in the context of other anti-discrimination laws.

For example, in Jackson v. Birmingham Board of Education, 544 U. S. 167 (2005), Title IX of the Education Amendments of 1972 prohibited “discrimination” on “the basis of sex” in connection with any education program receiving federal aid. The controversy in that case was over retaliation after a complaint of sex discrimination, and that statute, like the federal employee sections of the ADEA, did not expressly prohibit retaliation again someone who complained about sex discrimination. The US Supreme Court there concluded that “retaliation” was covered by the sex discrimination prohibition. In essence, the US Supreme Court held that if you retaliate against someone who has complained about sex discrimination, then the retaliation is an act of sex discrimination.

So the US Supreme Court for Ms. Gomez-Perez applied the same logic for the ADEA: Since the ADEA prohibited age discrimination against federal employees, then it was an act of age discrimination to retaliate against someone who complained of age discrimination.

The real issue then, in a setting where a statute does not expressly prohibit age retaliation, is whether retaliation is a subset of age discrimination (and therefore covered by the prohibition against age discrimination); or whether the retaliation is conceptually and analytically different. The US Supreme Court, for Ms. Gomez-Perez, and in comparable discrimination settings, has found concluded that retaliation is a subset of the broader prohibition of discrimination.

Prepared by Drew M. Capuder (contact information)

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Summary prepared by Drew M. Capuder (contact information); Voice: 304-333-5261