U.S. SUPREME COURT RULES THAT THE ANTI-RETALIATION PROVISION IS NOT ONLY CONFINED TO ACTIONS IN THE WORK PLACE

Dear Clients and Friends:

On June 22, 2006, the Supreme Court of the United States ruled that the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 (Title VII) is not only limited to actions that are related to employment or occur only at the work place. The Court held that, “the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant.” The Court defined such actions as those actions by an employer that are harmful to the point that they could “dissuade a reasonable worker from making or supporting a charge of employment discrimination.”

In the present case, a woman fork-lift operator claimed that her employer’s actions – (1) changing her job responsibilities, and (2) suspending her for 37 days without pay after she made a complaint to her manager – constituted an unlawful retaliation prohibited under Title VII. Prior to this ruling the Circuit Courts had reached different conclusions regarding whether the challenged action by the employer had to be employment or workplace related and also with respect to the level of harm required to be considered retaliation. The Supreme Court has now resolved both these issues by holding that (1) an employer’s action does not have to be related to the employment or workplace to constitute retaliation and (2) that a plaintiff must show that a reasonable employee would have found the employer’s action to be materially adverse. The Court held that an employer could effectively retaliate against an employee through actions not directly related to the employee’s employment, or by causing an employee harm outside the workplace.

The Court stated that it referred to what a “reasonable” employee would believe because it must be an objective standard to be judicially administrable and to also avoid the uncertainty of an employee’s personal feelings. The Court also held that the determination whether an employer’s action is significant will depend on the particular circumstances of that case. For example, the Court indicated that the refusal to invite an employee to lunch generally in of and of itself would normally be considered trivial and, therefore, not actionable, yet the refusal to invite an employee to weekly training lunches that might contribute significantly to the employee’s career advancement may be sufficient to deter an employee from complaining about discrimination.

If you have any questions with regard to the application of this case to your Company or with respect to any other labor and employment law matter, please do not hesitate to contact Steven Harz, Esq. at (201) 342-6000, or via email at sharz@hertenburstein.com.

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August, 1 2007