August 14, 2018

In November 2014, a San Diego federal jury awarded $185 million in punitive damages against AutoZone Stores for retaliating against a pregnant manager, Rosario Juarez, who had complained about gender discrimination.  In retaliation, AutoZone Stores deliberately humiliated her in front of other employees and customers, eventually demoting her and then firing her.  This verdict stands as the largest employment-law verdict for an individual in U.S. history.

A more recent development in workplace retaliation law was the passage of a new California law, S.B. 306, which took effect on January 1, 2018.  The most significant change brought about by this new law is that it allows the California Labor Commissioner’s Office to investigate workplace retaliation or discrimination without first receiving a retaliation or discrimination complaint from an employee, whenever it suspects retaliation or discrimination violations during the course of a wage claim or other proceeding.

The new law also makes it easier for the California Labor Commissioner or an aggrieved employee to obtain employee reinstatement, even before the investigation is completed and before the Labor Commissioner has made any findings about violations.  Moreover, under the new law an employer may have to pay not just lost wages, work benefits, and potential punitive damages, but also the Labor Commissioner’s attorneys’ fees if violations are found, and $100 per day (up to $20,000) if the employer willfully refuses to comply with a court order.

What Counts as Retaliation?
Retaliation can take many forms inside or outside the workplace.  Employers need to vigilantly police against retaliation.  In federal law, Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion, and also prohibits retaliation against employees who complain of discrimination.  California law prohibits employers from firing workers or taking other adverse action against employees or job applicants who exercise their rights under state employment laws.

In Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53, the U.S. Supreme Court broadened the retaliation provisions of Title VII.  The Burlington decision is important to understand in order to prevent and defend against retaliation claims under Title VII and other employment laws such as the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”).

Burlington Northern & Santa Fe Railway Co. v. White
Sheila White was hired as a laborer and forklift operator at Burlington Northern & Santa Fe Railway Co. (“Burlington”).  White was the only female employee in the maintenance department.  She complained to her employer when her direct supervisor made comments that women should not be working in the maintenance department, and other insults in front of her male coworkers.  White’s supervisor was subsequently suspended for ten days and required to attend a sexual harassment seminar.

White was reassigned from forklift operator to laborer after the incident occurred.  White then filed a complaint against Burlington with the Equal Employment Opportunity Commission (“EEOC”) alleging that Burlington retaliated against her for complaining about her supervisor by changing her job position and increasing the monitoring of her work.

Soon after, White had a disagreement with another supervisor, which resulted in a report of insubordination against White and White’s suspension without pay for 37 days.  After an investigation, Burlington concluded that White was not insubordinate, and Burlington reinstated White with back pay.  White filed another EEOC complaint and filed suit in federal court alleging a Title VII retaliation claim.

The Burlington Court’s Findings

1. The anti-retaliation provision of Title VII is not limited to actions or harm related to employment or that occur at the workplace.
2. The Title VII provision covers only employer actions that would have been materially adverse to a reasonable employee or applicant, or which are sufficiently harmful to dissuade a reasonable employee from making or supporting a charge of discrimination.
3. A reassignment of duties without a demotion can constitute retaliatory discrimination.
4. An employee suspension may be materially adverse even if the employee is reinstated with back pay.

Steps For Employers to Take

• Review and revise your policies on discrimination and harassment, and make sure that retaliation, both inside and outside the workplace, is proactively addressed.
• Redistribute your policies and obtain employee signatures acknowledging that all employees received, read, and understand the policies.
• Provide discrimination and harassment training, and ensure that the training specifically addresses retaliation so that all supervisors and managers know how to recognize the danger signs, prevent these issues from arising, and deal with them effectively when they do arise.
• Employers should be especially careful to be objectively truthful in their performance reviews, and to thoroughly document every disciplinary action they take.
• Consult an experienced employment attorney, who can alert you to potential problems and refine your policies, procedures, and training programs to minimize your risk exposure.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.　This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.