What is (and is not) considered retaliation?

A director for a major transit authority applied for two internal promotions. She didn’t get either. Feeling that she was more qualified than either successful candidate, the director reported discrimination internally and later filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission. Among other things, she alleged in the EEOC Charge that, after her internal report of discrimination, she experienced retaliation. For example, she alleged that he performance review scores went down, her workload increased, and some analysts no longer reported to her.

That’s not great. But, is it what the law considers “retaliation”?

In 2006, the Supreme Court set the bar for retaliation in Burlington Northern & Santa Fe Railway Company v. White. It held that no matter the retaliation theory, a plaintiff must show that the employer’s retaliatory actions, considered either singularly or in the aggregate, were “materially adverse.” (The alleged retaliation consisted of, among other things, White’s reassignment from forklift duty to “track laborer tasks,” which were more arduous.)

Courts are not supposed to analyze retaliation claims like a hostile work environment (e.g., whether the behavior is “severe” or “pervasive”), even if a plaintiff labels it that way. But retaliation must cause more than “trivial harms,” stuff that wouldn’t prevent reasonable employees from complaining about discrimination. The Supreme Court emphasizes that “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”

So, where does that leave the plaintiff-director who alleged that her employer retaliated against her for complaining about discrimination? The Second Circuit Court of Appeals concluded that individually, or in the aggregate, what the plaintiff purported to suffer was not materially adverse:

[The plaintiff] failed to make out a prima facie case because the allegedly retaliatory actions were not materially adverse. [She] argues that her diminishing performance ratings, not having analysts reporting directly to her, being assigned additional projects, and [her supervisor’s] hostile tone in emails, together constitute unlawful retaliation. However, the alleged retaliatory actions were the result of generally applicable workplace policies and [the plaintiff] has not adduced evidence that these policies were applied to her and not others. 

Ah! So, the plaintiff could have gotten all the way to trial on her retaliation claims if she had shown that the defendant singled her out and didn’t apply these workplace policies to others. Here, the plaintiff could not rebut the defendant’s evidence that she received negative performance evaluations because she was not adequately or timely completing her duties and had become increasingly challenging to work with.

The lesson for employers is that you don’t retaliate against employees who complain about discrimination. But they don’t get special treatment either. What you do is treat them the same as everyone else.

Also, remind those who do complain that the company takes the matter seriously, prohibits retaliation, and encourages further complaints so that the company can promptly address any continuing issues.