The Supreme Court Rules in Favor of Broader Protection for Employees Who Suffer Retaliation When They Complain About Discrimination: Part Two

This is Part Two of a two-part series by the authors on this important Supreme Court end-of-Term antidiscrimination/retaliation decision. - Ed.

In Burlington Northern & Santa Fe Railway Company, the Supreme Court reinforced Title VII's ban on retaliation against employees who complain about, or cooperate in the investigation of, unlawful employment discrimination.

As we discussed in the first part of this series of columns, the Court adopted a new test to determine whether a retaliatory act is actionable: "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." This test could prove to be a valuable weapon in the anti-discrimination arsenal, but only if courts take into account the reality of retaliation and how little it takes to deter a victimized employee from asserting her rights.

In this part, we will also discuss Justice Alito's concurring opinion, in which he refused to endorse the new test, arguing, instead, for a much stricter standard that would likely prove fatal to many claims of retaliation. His approach is a worrisome first step for the newly appointed Justice, one that does not bode well for his future support of workplace equality.

The Reality of Retaliation: It Happens Often, and Workers Know It

Unfortunately, when people complain of on-the-job discrimination, retaliation is more the norm than the aberration. Among all the different types of discrimination claims in the employment context, retaliation is the most common. In 2005, nearly 30% of charges filed with the EEOC were for retaliation.

Hard data is tough to come by, but studies typically show that between 30 and 60 percent of employees who report discrimination experience retaliation. Workers know this reality, and understand that complaining about discrimination comes with significant risks. Indeed, according to survey data, the fear of retaliation is the single most common reason why people decide not to report discrimination in the first place.

Given the obvious chilling effect of retaliation, the Supreme Court was right on target in holding that Title VII must prohibit any employer action - workplace-related or not -- that would deter a reasonable person from reporting discrimination. But, while the Court adopted a broad legal standard, its explication significantly understates the extent to which concerns about retaliation actually chill the reporting of discrimination.

Justice Breyer's opinion suggests that "normally petty slights, minor annoyances, and simple lack of good manners," along with "'snubbing' by supervisors and coworkers'" are not the kinds of actions that would deter a reasonable employee from reporting discrimination. Yet social science data on retaliation suggests that this prediction about the effects of anticipating seemingly "trivial" retaliatory actions (or seeing others endure these actions) on the average employee's likelihood to complain is probably not accurate.

The cold, hard truth is that even apart from retaliation, the social costs of reporting discrimination are extremely high. A woman or person of color who complains of discrimination in the workplace is likely to be perceived as a hypersensitive troublemaker. Perversely, this reaction is all the more likely when discrimination claims are well-founded; apparently, some colleagues and supervisors are especially angered when a complainant voices an ugly truth. Even in the face of solid evidence that a person has indeed experienced discrimination, reporting discrimination triggers strong social penalties.

The social costs of complaining act as a powerful deterrent to reporting discrimination. Study after study has shown that employees are very unlikely to report discrimination unless they have reason to believe they will have strong social support. Yet the loss of social support is exactly what the Court dismisses as "trivial" and, therefore, not actionable. Trivial or not, the reality is that the fear of an adverse social response is, by itself, enough to deter many victim-employees from reporting discrimination.

The Court's assumptions about what might deter employee complaints are not surprising. The low-reporting rate and the actual impact of anticipated retaliation contrast sharply with how most people think they themselves would respond if confronted with discrimination.

In studies of college-age women, for example, the subjects typically insist that they would respond quite forcefully if they were sexually harassed. But in reality, when actually faced with such behavior in the workplace, most women respond timidly - by ignoring it, avoiding instead of confronting it, and almost never reporting it.

Given the gap between expectations and reality, the danger is that judges and juries applying the new reasonableness standard will use their own assumptions about how they think they would behave if they experienced discrimination. If so, then this exercise will no doubt lead, as it has in the sexual harassment context, to a legal world in which employees are deemed unreasonable for being deterred by seemingly modest adverse actions - even though those supposedly modest actions, in practice, can have a powerful chilling effect.

The danger is that the typical employee, who exhibits the typical response to "trivial" actions, will be deemed unreasonable - and only the rare employee who is "an island unto himself" (or herself) will be deemed reasonable.

Drawing the Line Between Social Slights and Harassment

Given the realities of retaliation, the question whether retaliation in a particular case would likely deter a reasonable person from complaining should be answered with great care. Judges and juries must be careful not to add to the disincentives that already operate to suppress discrimination claims by tolerating retaliatory acts.

Federal courts, of course, must obey the Supreme Court in its choice to rule out some social slights as insufficiently adverse to support a claim of retaliation. But at the same time, they should deem negative treatment that goes beyond mild forms of social disapproval from colleagues and supervisors sufficiently retaliatory.

Judge Alito Versus Justice Alito: Why Alito's Original View Was the Right One

In Burlington Northern, Justice Alito wrote a separate concurrence, agreeing with the eight-Justice majority's judgment in favor of White, but not in its reasoning. Taking a closer look at the concurrence can help shed light both on Alito as a new Justice on the Court and on the law in this area.

Whereas the Court's test deems a "materially adverse" retaliatory action sufficient until Title VII, Justice Alito, in his concurrence, seems to endorse the much-tougher "tangible employment action" standard - which would count only demotions, firings, changes in compensation, and the like as retaliation.

For the reasons we noted above, Justice Alito has it all wrong: In light of the realities of retaliation, and its power to deter employee complaints, the Court's standard for how serious retaliation must be should not be stricter and, more importantly, must be implemented in a way that is sensitive to workplace realities.

And Justice Alito's view isn't just wrong on the merits - it's arguably inconsistent with the reasoning of an opinion he wrote when he was on the U.S. Court of Appeals for the Third Circuit in Jensen v. Potter.

Jensen posed the question whether severe or pervasive coworker harassment in response to reporting discrimination is sufficiently adverse to be a form of actionable retaliation if management knew or should have known of it and failed to take prompt action to stop it. Then-Judge Alito said yes. But if he then (rightly) saw this form of retaliation to be adverse enough, why didn't he later - as a Justice -- see retaliation that, while serious, stopped short of a tangible employment action, as serious enough to be covered by Title VII?

(The tangible employment action standard comes from the Supreme Court's 1999 decision in Burlington Industries v. Ellerth, a case involving supervisory sexual harassment. In that case, the Court adopted an affirmative defense to employer liability for supervisory hostile environment harassment, but permitted automatic employer liability if the supervisor inflicted tangible harm.)

Judge Alito was right to recognize coworker harassment as sufficiently adverse to support a retaliation claim, but Justice Alito is wrong to now insist on a tangible employment action in order to proceed with a retaliation claim. As Justice Breyer's opinion for the Court recognizes, the question of when there should be automatic liability for supervisory sexual harassment is very different from the question of which employment actions count as unlawful retaliation when used to punish a discrimination claimant.

Happily, the majority's "materially adverse" standard leaves room to recognize coworker harassment as just the sort of adverse action likely to deter a reasonable employee from reporting discrimination.

Alito's decision to concur separately in order to take a more conservative position than eight other Justices is striking, especially in light of Chief Justice Roberts's touted emphasis on unanimity.

The Pitfalls of "Reasonableness" Standards: Diverging from Reality

The success of the Court's newly adopted "materially adverse" standard will ultimately turn on how trial courts apply law to facts in judging whether retaliatory actions are likely to dissuade a reasonable employee from complaining, and how the federal courts of appeal review the trial courts' decisions.

Unfortunately, in other areas of Title VII law, reality and "reasonableness" have significantly diverged. For instance, one way for an employer to win a sexual harassment case is if a court holds that the plaintiff did not act reasonably to prevent and correct the harassment. The reality is that the vast majority of women do not report harassment through an existing employer grievance procedure, because they quite reasonably fear retaliation and the loss of social and institutional support. But legal "reasonableness" is very different: Courts applying this test have generally ruled that it is unreasonable for an employee to fail to report sexual harassment through internal procedures.

Legal standards purporting to measure the "reasonableness" of the plaintiff are especially risky if courts judge reasonableness from their own (privileged) perspective, distanced from most people's real-life experience. It is hard for anyone to predict how they might respond to discrimination, perhaps even more so for a federal judge whose life experience is likely to have been much different from the average plaintiffs in front of him.

In a previous column, we expressed concern about another doctrine limiting Title VII retaliation claims -- the requirement that in order to be protected against retaliation for "opposing" discrimination, a complainant must have had a reasonable belief that the conduct being complained about amounted to unlawful discrimination. Lower courts have applied this standard in a way that leaves employees out in the cold, by deeming the employees "unreasonable" if they lack an understanding of discrimination law that matches that of the courts. Not every household chats about the law over dinner after Mom or Dad comes home from serving on the bench; to call an employee unversed in the law "unreasonable" is deeply unrealistic.

The Relevance of the Plaintiff's Circumstances in Evaluating Reasonableness

In this regard, Justice Breyer's admonition in Burlington Northern to evaluate whether a retaliatory action is "materially adverse" "from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances," (emphasis added) is very promising. Attention to the perspective of the plaintiff can help mitigate the danger that a reasonableness standard might set the bar too high, or fail to accommodate the realities most workers face.

What kind of "circumstances" might be relevant? Family circumstances, and gender realities, fortunately, seem to be among them. As Justice Breyer acknowledged, even if a scheduling change might not deter some employees from reporting discrimination (for example, a male employee a with a stay-at-home wife), it might be terribly chilling for a working mother whose livelihood depends on precariously juggled child-care arrangements.

The relevant circumstances that a court should consider also include the employee's position in the organization. Retaliation is much more likely to occur - and is much more threatening - if the complainant has a relatively lower-level position within the organization. Lower-ranking employees are already less likely to report discrimination because they fear retaliation, and relatively modest actions that might not deter a boss from reporting could easily deter someone lower in the organizational hierarchy.

Hopefully, the effect of the new reasonableness standard adopted by the Court in White will not be as draconian as that of some of the Court's other forays into judging the reasonableness of discrimination victims. Attention to the plaintiff's circumstances, and a sensitivity to the reality of how people respond to fears of retaliation, can improve the chances that the Court's newly adopted test will fulfill its promise of providing strong and meaningful protection from retaliation. And an attentive reading of Justice Breyer's opinion shows that it counsels just such sensitivity.