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Lewis “Scooter” Libby, former Assistant to the Vice President Richard Cheney,  and  magazine maven Martha Stewart ended up in trouble for how they responded when charged with  wrongdoing. While the stakes are generally not this high when employment managers are charged with discriminating against an individual under their supervision, the message is worth heeding: Be careful how you respond.  Above all, be careful that none of your actions can be considered retaliation under the law.

Retaliation is defined under Title VII of the Civil Rights Act as discriminating against an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or made a charge, testified, assisted or participated in a Title VII proceeding or investigation. An example would be an employee complaining about graffiti that is derogatory to women. This would be “opposition” to sex discrimination.  Retaliation might also occur in connection with protected activities under the  DC Human Rights Act.

To underscore these provisions of the law, CUA’s EO/Affirmative Action Policy states  as follows: “Acts of retaliation will result in disciplinary action regardless of the outcome of the underlying complaint.”

One problem is defining exactly what constitutes an act of retaliation. Supervisors have a better idea of just how careful they have to be since the Supreme Court’s decision at the end of the last term, in the case of Burlington Northern and Santa Fe Railway v. White. In that case, a female forklift operator, Sheila White, who was employed  at the Railway’s train yard complained of sexual harassment. While the person harassing her was disciplined, within the same month that White filed her complaint, her employer reassigned her job duties, taking her out of the position of forklift operator. She filed a charge with the EEOC, and within the month, she ended up suspended. This is not an auspicious set of facts with which an  employer goes to court.

The question the Supreme Court looked at involved defining retaliation under Title VII.
The Court stated the legal standard as follows:

In our view, 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.’ ” Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662).

The Court continued and noted that the anti-retaliation provision is not meant to insulate an employee from “those petty slights or minor annoyances that often taken place at work and that all employees experience”. Per the Court:

Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.

What might be perceived as retaliation could include the following ill- advised actions: