In recent years, the U.S. Supreme Court has handed down some employment law decisions that, quite frankly, have had little practical impact beyond the parties to that case. But two employment law decisions handed down in the last week of the 2012-2013 term have quite significant implications for employment discrimination law — consequences that are favorable to employers. The holding in each case — one relating to retaliation and the other relating to workplace harassment — will make it harder for plaintiffs to assert successful claims.
Effective enforcement of employment discrimination law requires that stringent sanctions be imposed against companies that retaliate against employees who object to perceived unlawful acts. That being so, the Supreme Court has, over the last few years, given wide berth to retaliation claimants — finding retaliation liability under statutes that do not explicitly reference retaliation, CBOCS West Inc. v. Humphries, 553 U.S. 442 (2008); finding protected conduct by participating in a company investigation of discrimination claims brought by co-workers, Crawford v. Metropolitan Gov't of Nashville & Davidson County, Tenn., 555 U.S. 271 (2009); and accepting the Equal Employment Opportunity Commission's (EEOC) broad definition of retaliation, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Under White, victims of retaliation need not prove they suffered some material, adverse job action as a consequence of their protected activity; they need only show that a reasonable worker in their situation would "likely [be] dissuaded" from protesting the perceived discrimination if she had known it would have resulted in the undesired consequence — such as a loss of flexibility in work scheduling, as opposed to more "tangible" actions such as termination or the denial of a promotion. See id. at 68-70.
