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Employment Law

The Broad Array Of Conduct That May Qualify As Retaliation Under Section 704 Of Title VII

The employment lawyers at Rapaport Law Firm represent employees who have been subjected to unlawful retaliation in the workplace. New York and federal law prohibit employers from taking adverse actions against an employee for complaining about discrimination or for requesting an accommodation that the employee needs because of disability or pregnancy. It is also unlawful for an employer to retaliate against workers for trying to enforce their rights under wage laws, such as the right to overtime compensation. Retaliation can take many forms, including termination; denial of promotion; unjustified negative evaluations; work schedule changes; and increased surveillance of work. Sometimes, employees who complain will find that they are suddenly subjected to harsher application of workplace rules relating to attendance or work performance than in the past. This is unlawful.

In Burlington Northern v. White (US Supreme Court 06/22/2006) the U.S. Supreme Court made clear that the type of conduct that can constitute unlawful retaliation under Title VII is much broader than many defense attorneys have argued. The basic rule, as articulated by the Court, is as follows:

"We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context 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."

The retaliatory conduct need not even be directly related to the complaining party's employment. For example, filing false criminal charges against an employee can be a violation of Section 704. Berry v. Stevinson Chevrolet, 74 F. 3d 980 (10th Cir 1996)

In order to "separate significant from trivial harms," the Court requires the employee to show that the employer's action was "materially adverse." This will exclude "petty slights or minor annoyances." The Court adopted an objective standard, so an individual employee's "unusual subjective feelings" will not be relevant. The focus is on the materiality of the employer's action and "the perspective of a reasonable person in the plaintiff's position." Examples of materially adverse actions include: (a) changing an employee's job responsibilities to work that is less prestigious or perceived by the employee (or by other employees) as worse; (b) changing an employee's schedule; and (c) excluding an employee from activities that are available to other employees.

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