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Here’s what lawyers know: The U.S. Supreme Court changed retaliation law in Burlington Northern Santa Fe Railway Co. v. White earlier this year. But many in-house lawyers don’t fully understand what their new responsibilities entail. General counsel will now have to reeducate management on what constitutes retaliation; establish processes and procedures to manage Burlington Northern claims; and lead their organizations to transform the seemingly oppressive weight of this case into a corporate advantage. Here’s the baseline, according to the Supreme Court’s June 22 opinion. Sheila White worked for Burlington Northern in the relatively cushy job of forklift operator. Her supervisor allegedly made some sexist remarks. She complained, and was moved from pedal-pushing to hard labor. Sensing retaliation, she filed a U.S. Equal Employment Opportunity Commission complaint. White later had a dispute with her new boss and was suspended for 37 days, but she filed a successful union grievance, which resulted in restoration of her lost back pay. She filed another charge of discrimination with the EEOC, this time arguing that she had been suspended because she had filed the earlier charge of discrimination. A suit later, she was $43,500 richer. White and Burlington Northern took their fight all the way to the high court. The justices sided with her, rejecting various circuit courts, which had held that employees can only assert retaliation claims when employers impose termination, deny a promotion, or do something that similarly hits the employee’s purse strings. What’s the new standard for determining what an adverse employment action is? Per Burlington Northern, workers “must show that a reasonable employee would have found the challenged action materially adverse,” meaning the employment action might dissuade a reasonable worker from pursuing a discrimination charge. So, in White’s case, that meant that the transfer to a more arduous job, albeit at the same rate of pay, could create a retaliation claim. And, a suspension without pay, even though fixed later, could do so too. What other types of conduct support a retaliation claim under the new test? The high court said the situation will vary from employee to employee. For instance, a schedule change may make little difference to many workers, but could matter enormously to a parent with school-age children. A change to the former wouldn’t be retaliation, but a change to the latter could be. The court put it succinctly: “Context matters.” The decision does not change the basic legal principle that an employee complaining about retaliation must have a reasonable belief that the complained-of conduct violates the law. This case doesn’t allow every belief that discrimination is occurring to set the stage for a retaliation claim. Burlington Northern doesn’t empower employees to sue if they lack a good-faith belief that what they’re protesting is really unlawful discrimination. The best way to protect against retaliation claims still is to spot � early on � employees who are most likely to make frivolous complaints. What’s the wise GC to do? Rarely does a manager fire or demote someone without upper-level and HR approval. Companies have the chance to review these decisions and stop them. There is little control, though, over the subtle interactions among employees at work. So, if an employee accuses a supervisor of retaliation, audit the decision. Have an untainted set of eyes review the supervisor’s action. Rewrite harassment and retaliation policies to broadly cover subtle slights. Complaints of retaliation can seem minor. But now all of them can be illegal if the context is there and the decision is motivated by a retaliatory animus. Take reports of slights seriously; investigate them. Train supervisors on the risks of how employees perceive their actions, regardless of their intentions. Burlington Northern also means that companies will have many more incumbent employees filing claims of discrimination and still working for the organization, just like White. It is imperative that managers keep the filing of a claim of discrimination separate from any memo on performance. Never mention the filing of a charge with the EEOC in a memo regarding employee performance. It doesn’t belong there. Some believe that plaintiffs lawyers won’t take Burlington Northern retaliation claims. I disagree. The subjective intellectual framework of Burlington Northern will be irresistible to plaintiffs lawyers. Moreover, a winning lawyer can collect attorneys’ fees from an employer, and those fees may exceed the amount that a jury awards to the employee. Further, juries can award mental anguish and punitive damages. As to mental anguish, lawyers as well as courts will look to the language of the statute, which permits recovery for “loss of enjoyment of life” and “inconvenience, not just mental anguish.” And punitive damage claims are more likely in a retaliation setting. After all, to retaliate is suggestive of intent, not mere mistake. Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. He is a regular contributor to Texas Lawyer, a sibling publication of Corporate Counsel, where this article originally appeared.

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