Court Applies Title VII Retaliation Standard to FMLA Retaliation Claim

December 14, 2006

Following the U. S. Supreme Court's 2006 ruling making it easier for individuals to sue employers for retaliation under Title VII of the Civil Rights Act of 1964, federal courts have begun using the broad 'reasonable employee' standard in analyzing retaliation claims under other statutes. In Burlington N. & Santa Fe Ry. Co. v. White. 126 S. Ct. 2405 (2006), the Supreme Court resolved a split of opinion among the federal circuit courts concerning the legal standard for plaintiffs in such cases, holding that an "ultimate employment decision" or "materially adverse change in the terms and conditions of employment, such as a discharge, demotion, or loss of pay' is not required. Rather, the Court said the standard should be whether a "reasonable employee would have found the challenged action materially adverse," which turns on whether the employer's action "might have dissuaded a reasonable worker from making or supporting a charge or discrimination." [See 'Rise in Claims Likely After Supreme Court Loosens Standard in Retaliation Lawsuits,'http://www.jacksonlewis.com/legalupdates/article.cfm?aid=958].

While the Supreme Court's decision directly applies only to retaliation claims under Title VII, other federal courts and administrative agencies are guided by the Court's analysis when considering retaliation claims under other statutes. For example, the U. S. District Court for the District of Arizona recently used the broad 'reasonable employee' retaliation standard in considering a claim for retaliation under the Family and Medical Leave Act. See Foraker v. Appollo Group Inc., No. CV-04-2614-PHX-DGC, 2006 U.S. Dist. LEXIS 85737 (D. Az. Nov. 22, 2006). The plaintiff, a university senior director of assessment, alleged that after he took FMLA leave in 2004, the company placed him on a paid administrative leave, relieved him of all job responsibilities, and prohibited him from coming to the workplace.

Applying the 'reasonable employee' standard, the Arizona court held the employer's actions would dissuade a reasonable employee from exercising his or her FMLA rights and was, therefore, 'materially adverse' under the Supreme Court's legal standard for retaliation. In reaching this conclusion, the court considered the fact that, although the plaintiff continued to receive full compensation and benefits during his leave, the employer had relieved him of all duties and had prohibited him from entering the workplace. [ Foraker v. Appollo Group Inc., No. CV-04-2614-PHX-DGC, 2006 U.S. Dist. LEXIS 85737 (D.Az. Nov. 22, 2006).]

Continuing the trend of the past decade, charges of retaliation comprised nearly 30% of all charges filed with the Equal Employment Opportunity Commission in 2005, and this rising trend also can be seen in employment litigation of all types. As this decision demonstrates, employers must use extra precaution when dealing with an employee who has invoked any of the rights protected employment laws and regulations. This means, at a minimum, that management must carefully review and evaluate any personnel action contemplated against such an employee, regardless of which statutory rights may be involved. Employers are wise to consult with legal counsel prior to taking any such action.

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