August/September 2006 Issue Number 84

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

Reconsidering Retaliation

Title VII of the 1964 Civil Rights Act not only makes it illegal to discriminate against an employee on the basis of race, sex, ethnicity, color or religion, but also prohibits retaliation against an employee who complains that he or she has experienced discrimination. In 1980, the first guidelines for sexual harassment recognized that harassment based on protected class status is a form of discrimination, and thus illegal under Title VII. Therefore, retaliation against an employee who files a harassment complaint is illegal under federal law.

But what is retaliation, exactly? Clearly if an employee is fired for filing a complaint, such job action could be considered retaliation. But what if an employee is simply transferred? What if someone is unfairly disciplined following a harassment complaint, but that discipline is later withdrawn? Would these situations also be examples of actionable retaliation?

Consider the case of Sheila White, a forklift operator for Burlington Northern Railroad. When Ms. White complained to her supervisors about workplace harassment, she was transferred to a position as a track laborer, a job that provided the same pay and benefits, but was also considered by all in the workplace to be dirtier, more physically demanding, and overall a worse job than forklift operator. Ms. White was also suspended from work for 37 days after being accused of insubordination- she was later cleared of the charge and reinstated with back pay.

Did Ms. White experience actionable retaliation as a result of her harassment complaint? The lower courts have taken a wide range of views on what conditions must exist to prove retaliation. In this case, the U.S. Supreme Court weighed in on the matter. In a unanimous decision, the court ruled that Ms. White did experience retaliation and was entitled to compensation as a result. The court wrote, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

The court further held that "the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." For example, filing false criminal charges against a complaining employee outside the work environment could qualify as retaliatory behavior. Further, the court emphasized that "context matters." The actual impact of the action and not the action on its face must be considered when retaliation is considered. For example, changing a work schedule for one person might be merely inconvenient, but that same change might make life impossible for a single parent or someone caring for a sick relative.

The effect of this ruling is to clarify and expand the rights of workers who complain about retaliation as a result of filing workplace discrimination or harassment charges.

Sources: Business and Legal Reports, June 23, 2006
Burlington Northern and Santa Fe Railway Company v. White, US Supreme Court, No. 05-259

A California jury has awarded $61 million to two FedEx drivers of Lebanese descent who claimed that a manager harassed them with racial slurs for two years. The award included $50 million in punitive damages in addition to $11 million in compensatory damages. The supervisor was also held liable for $1 million under California law that allows individuals to be held personally liable for workplace harassment. FedEx plans to appeal.

Source: Associated Press, June 3, 2006

The Pickering Balancing Test

Legal decisions that attempt to strike a middle ground between employers' rights and the First Amendment rights of employees often mention a precedent called "the Pickering balancing test." This legal citation refers to a 1968 U.S. Supreme Court case Pickering v. Board of Education in which a high school teacher was fired for writing a letter to a newspaper criticizing decisions made by the school system in areas of resource allocation and budgeting. The school board, which had prevailed at the circuit court level, claimed that Mr. Pickering's letter was not protected free speech because it contained factual errors and was "detrimental to the best interests of the schools." Pickering's claim that his letter was protected by the First Amendment was rejected by the circuit court on the grounds that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools "which in the absence of such position he would have an undoubted right to engage in."

The Supreme Court reversed the lower court decision, establishing as a result a "balancing test" between public employers and their employees' rights. This two step inquiry asks: Is the speech in question a matter of public concern? And if so, can the interests of the employee as a citizen to exercise his or her First Amendment rights be balanced against the interest of the public employer in promoting the efficiency of the public services it performs through its employees?

The effect of the Pickering precedent is to afford greater free speech rights to public employees when they are expressing themselves on matters of public interest. However, Pickering is all about balance- that public employees do not have unfettered rights to express themselves in the context of their employment. The focus of that speech must be of clear public interest, and must be balanced against the employers' rights to maintain efficiency and effectiveness of operation.

Clarifications of the 1968 Pickering decision continue to occur within the Supreme Court. Just this year, in Garcetti v. Ceballos, the court found in favor of the employer, because the speech in question was part of the public employee's specific job duties. The court wrote, "a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations."

Sources: Garcetti v. Ceballos U.S. Supreme Court No. 04-473
Pickering v. Board of Education U.S. Supreme Court 391 US 563 (1968)

© Linda F. Willing, 2006