The BP Blast!: A California Employment Law Blog

Retaliation: A mixed bag of retaliation between the U.S. Supreme Court and the California Supreme Court

On June 22, 2006, the U.S. Supreme Court issued its opinion in Burlington Northern v. White, changing the rules most federal courts follow when assessing retaliation claims under Title VII of the Civil Rights Act of 1964. Now, under federal law, employers must be careful to avoid any action – whether it takes place in or out of the workplace – that could be considered retaliatory by a “reasonable employee or job applicant.” In Burlington, plaintiff White filed a sexual harassment claim with the Equal Employment Opportunity Commission. Following her complaint, Burlington reassigned her to another position and removed her from her duties as a fork-lift operator. White then filed a second complaint with the EEOC, alleging gender discrimination and retaliation. Burlington suspended her for more than a month without pay for insubordination. Burlington later concluded that no insubordination had taken place and reinstated White with full back-pay.

The Supreme Court rejected the “ultimate employment action” test for retaliation adopted by a number of federal courts, which limited unlawful retaliation to ultimate employment decisions such as termination, demotion or refusal to hire. The Court also ruled that Title VII retaliation is not limited to employer actions that affect the terms and conditions of an employee’s employment. Instead, the Supreme Court held that employees asserting a federal retaliation claim must show that a reasonable employee would find the employer’s actions “materially adverse,” which means it might “dissuade” a “reasonable worker” from engaging in the protected conduct. The Court noted that while failing to ask an employee to join a supervisor for lunch may not rise to retaliation under some circumstances, it might if the supervisor excluded the employee from lunches that would lead to professional advancement. The ruling may result in a sharp increase in federal retaliation claims in California.

While a great deal of discussion and commentary has been offered regarding the U.S. Supreme Court’s recent opinion, little comparison has been done with last year’s California Supreme Court decision in Yanowitz v. L’Oreal USA, Inc. In Yanowitz, the plaintiff refused to obey a supervisor's order to fire an employee who was not sufficiently sexually attractive. The Court held the employee’s refusal was a “protected activity” under California's Fair Employment and Housing Act ("FEHA"), even though the employee never explicitly complained about the supervisor’s order, because the employee “reasonably believed” the supervisor’s directive was discriminatory. Moreover, unlike the United States Supreme Court, the California Supreme Court adopted a narrower standard for defining an "adverse employment action" for purposes of establishing a retaliation claim. The Court adopted the “materiality” test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment (a clearly more employer-friendly approach). This includes actions altering the terms and conditions of employment, not just ultimate employment actions such as discharge or demotion. The California Supreme Court in Yanowitz specifically rejected the broader "deterrence" test just adopted by the U.S. Supreme Court in Burlington Northern.

It is rare instance where employment law in California is actually more favorable to employers than corresponding federal law. However, based on the Burlington Northern and Yanowitz opinions, currently it is more difficult for California employees to successfully sue for retaliation under California as opposed to federal law. Regardless of which standard is applied, employers should vigorously train supervisors and managers to comply with their anti-harassment, anti-retaliation and equal opportunity policies, and quickly investigate all claims of discrimination and harassment. In addition, employers should be extremely cautious when dealing with an employee who has complained of unlawful discrimination or harassment, and fiercely monitor for retaliation after a complaint has been made.

Our attorneys routinely defend employers from retaliation claims. Our focus on litigation gives us with the practical experience necessary to provide employers with the best advise and counsel possible when faced with employment law issues.