Legal Updates

Supreme Court strengthens protection for employees objecting to discrimination.
Aaron Nisenson, General Counsel I.U.P.A.

The Supreme Court recently issued an important decision emphasizing that employees who object to discrimination under federal anti-discrimination statutes are protected not only from suspensions or demotions, but also from other actions that would intimidate a reasonable worker into not objecting to discrimination. Burlington Northern & Santa Fe Railway Co v. White.

In Burlington, a female fork lift driver objected to her supervisor’s derogatory comments. She alleged that in retaliation, she was transferred to a more difficult job as a track laborer, and was suspended for 37 days without pay (the suspension was reversed by the Company and she was given full backpay.) The Company argued because the transfer to another job did not alter her employment, and because she was given backpay for the suspension, there could be no retaliation under Title VII.

Title VII, outlaws employment discrimination, and also has an anti-retaliation provision that forbids an employer from “discriminating against” an employee who protests discrimination. The Court found that the anti-retaliation prohibition extended to actions that would not be covered by a discrimination claim, because, while the anti-discrimination provisions are explicitly limited “to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision.”

In particular, the Court held that the anti-retaliation provision “covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. . . . that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” While prohibited conduct would not include “petty slights or minor annoyances,” it could include changes in job assignments, schedules, and training opportunities.

This decision can assist law enforcement unions and their members protect their rights on the job. First, the decision strengthens protection for employees objecting to discrimination under Title VII. Often Collective Bargaining Agreements and state or locals laws will explicitly adopt Title VII, and these protections would expand as well. Second, the Court strongly defended the rights of employees to protest discrimination and to be protected from retaliation, and these statements may be helpful when alleging retaliation for other activities, such as union activity.

Third, the Court defined the term “discriminate,” which is used in many CBA’s and local statutes, very broadly. Finally, the Court pointed out that the National Labor Relations Act’s anti-retaliation provision was very broad. Since many state and local labor relations statutes are patterned after the NLRA, these statutes should be strengthened as well.

However, Title VII allows for the recovery of compensatory damages for pain and suffering, while many other laws do not. If compensatory damages are not available, it may be difficult to bring a claim for retaliation when there is no loss in pay. Therefore, as always, it is important to discuss any potential legal claims with your local union or labor attorney.

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