Because of the attorney-client privilege I cannot blog about conversations with my clients. Instead, I will write about fictional clients who have the same questions as the employees I see in my practice.
Today's fictional client, Donna, complained to human resources about her boss's discrimination against older workers. Her boss was reprimanded so, of course, he retaliated against Donna. Specifically, he leveled unwarranted criticism at her while doing favors for co-workers who had not complained.
Donna's question was whether she had a case for retaliation. The answer was, "probably not," because she had not lost money or otherwise suffered a so-called tangible, adverse employment action. Courts will dismiss retaliation cases if the employee did not suffer a tangible employment loss.
The U.S. Supreme Court recently defined how much the employee must suffer to have a tangible employment action. In Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006), the Supreme Court defined a tangible, adverse action as one that:
would have been materially adverse to a reasonable employee or applicant. . . . [A] retaliation plaintiff (must) show that the challenged action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
In Burlington the company suspended an employee for 37 days without pay after she made a complaint but then reversed course and paid the employee for her lost wages. The question before the court was whether the adverse action (the suspension) was "tangible" because the employee ended up not losing money. The Court said that it was since, based on the test quoted above, a reasonable person would not make the complaint in the first place knowing that she would go 37 days without pay or an assurance of being paid.
So back to Donna. I had to break the news to her that she probably could not successfully sue her employer until she had suffered something more tangible. Personally, telling an employee she must suffer more before the court room doors open to her is tough. Anyone who has been through retaliation knows it is awful, even if they do not lose money as a result of it.
Donna took the news stoically. The good news is that she is still employed. Now, however,she is armed with specific tools to combat and survive the retaliation. More on that later.
