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What does Burlington Northern Mean?


According to the commentators, last week's US Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White sent the message that retaliation claims under Title VII (and by extension, the ADA and probably the ADEA) could be an HR manager's worst nightmare.  The Court ruled that if an employer perpetrates some "adverse action" -  even one outside the scope of "terms and conditions of employment" - in reaction to protected activity under Title VII, that was illegal  retaliation. 

According to one national employment firm, this case will mean "significant change".  Another referred to "profound impact."

In Burlington, the railroad had tried to make it right - the plaintiff had been reassigned to more rigorous duties after complaining of harassment, then was suspended after filing an EEOC charge, and management reversed itself and gave her back the lost pay.  A jury gave her damages, convinced that the reassignment was payback.

What was unnecessarily confusing about the standards sought to be clarified by the Court was the misapplication in the lower courts of the concept of "employment terms and conditions," and the degree of harm imposed by the retaliation.  The Sixth Circuit Court of Appeals had ruled that White's suspension (even when later undone) was retaliatory.  Another appeals court ruling that created the lower courts’ conflict getting this case to the Supreme Court found that retaliation must involve some "ultimate employment decision."  Others merely drew the line at reprisal that results in an adverse effect on "terms, conditions, or benefits of employment."

The Burlington decision is profound in the sense that it breaks the link between "terms and conditions" but perplexing in that it avoids a boundary to replace that one.  It merely holds that retaliation extends "beyond workplace-related or employment -related retaliatory acts and harm."  Its example: an employer files false criminal charges against the complaining employee as a reprisal.

But the Court wisely, and necessarily, left the degree of harm uncalibrated.  Trivial counter-attacks don’t matter. But obviously we know from Burlington that the act of assigning an employee to far more demanding work is retaliatory (the Seventh Circuit had already said as much in the past), and we also know that suspension without pay is trouble, even if the employee is subsequently made whole as to the latter.

What does all this mean?  Avoid the perception that floodgates have opened.  The plaintiff’s bar has already been running to the court clerk with retaliation findings that stretch the law every which-way. 

We offer three suggestions:

First, managers need to be trained regularly on the avoidance of reprisals.  Getting back at complainers (soon after they complain), even with what the Court called "trivial" actions, is stupid, and legally unacceptable.  Expressing disappointment over a complaint may be lawful, but any personnel action that smells and sounds like revenge is not. We did not need to have the Court tell us that sending a person to the salt mines, when that person has just complained of harassment, is illegal.

Second,  should managers err and commit the reprisal, do not wait for a grievance (like the one White filed) to fix it.  Take the initiative.  Rescind the suspension on your own.  Sit down with the complainer and (without admitting any screw-up) work out an understanding that your reparations are straightening out the problem, comprehensively.

Third, if you have a problem employee who nevertheless has made an arguable harassment (or other discrimination-related) complaint, you in almost all cases must show more than tolerance of the complaint.  And in almost all cases must pay the cost of the passage of time to take action before administering discipline.  Suppose an employee like White was in fact sent to an alternative work environment that you know is BETTER for her than the one she complained about.  If she nevertheless complains that the alternative position is too hard or in some way unfair, be pro-active and propose a second alternative. If she can't stand the second alternative, chronicle these efforts.  You did all you could.  She has to choose which opportunity she wants.  The courts and the juries will take notice of your good faith.    

NOTE:  Transferring the alleged harassee is less smart than transferring the alleged harasser.