John D. Finerty, Jr.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of a number of protected classifications including race, gender, ethnicity, national origin and religion. Title VII also prohibits retaliation against employees who file discrimination charges, who participate in an investigation related to a charge or who support a charge filed by a co-employee. Every once in awhile a case reminds employers that retaliation is a separate and equal violation of Title VII, even if the underlying discrimination charge has little or no merit.
In Washington v. Illinois Dept. of Revenue, Case No. 03-3818 (7th Cir., Aug. 22, 2005), the court held the employer could be held liable for retaliation when it rescinded an employees flex time schedule in response to a race discrimination charge. The employer, thus, learned an important lesson: liability for the response to a discrimination charge may be actually worse than the potential liability for the initial discrimination charge. In other words, retaliation makes things worse, in terms of liability, than the actual discriminatory conduct.
Chrissie Washington worked as an executive secretary at the Illinois Department of Revenue. She worked a flextime schedule from 7 a.m. to 3 p.m.; her schedule allowed her time to care for her son, who had Down Syndrome. But in 2000, a senior manager rescinded her flextime schedule and transferred her to a different Executive Secretary position that required she work from 9 a.m. to 5 p.m. Washington claimed that reassignment was the result of a race discrimination charge she filed in June 1999 over the reassignment of some of her other duties.
Without a flextime schedule, Washington left work every day at 3 p.m. and used vacation and sick time from 3 p.m. to 5 p.m. until those benefits were exhausted.
She then began taking unpaid leave. Eventually, she returned to work for a new supervisor who allowed her to work her previously flextime schedule of 7 a.m. to 3 p.m.
The Title VII Standard For Retaliation
This case involved an analysis of the race discrimination and retaliation statutes, 42 U.S.C. § 2000e-2(a) and 3(a). Specifically, § 2000e-2(a) prohibits discrimination in the terms and conditions of employment; § 2000e-3(a) prohibits retaliation, but does not make the same reference to with respect to compensation, terms, conditions, or privileges of employment that is contained in § 2000e-2(a) and has led a number of courts to hold that retaliation does not necessarily entail an adverse employment action. See Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 745-46 (7th Cir. 2002). The court in Washington v. Illinois Dept. of Revenue, however, held that the anti-retaliation rule in § 2000e-3(a) and the anti-discrimination rule in § 2000e-2(a) both contain a materiality requirement.
Title VII prohibits discrimination and requires that the employers conduct constitute an adverse job action (i.e. material job action), in order to be actionable.
Retaliation is a kind of discrimination under Title VII, according to the court in Washington. The materiality requirement is, thus, built into the word discrimination and must apply in retaliation cases.
There are different types of retaliation, however.
The court in Washington pointed out that not every slight or sign of disrespect in an office environment is discrimination: Even in an all white, all male, labor force where all workers share one religious faith, everyone feels put upon or slighted occasionally; if these cannot be attributed to discrimination, neither can most of the other disappointments people encounter at work. To be actionable, the employers alleged retaliation must, therefore, be material. Thus, lateral transfers for example that do not affect an employees pay (or significantly affect working conditions) cannot be called discriminatory.
Conduct that is immaterial in some situations, however, may be material in others. According to the court, an action is not material if it would not have dissuaded a reasonable worker for making or supporting a charge of discrimination. In Washingtons case, working a 9 to 5 schedule was a materially adverse change for her.
By rescinding her flextime schedule, the employer effectively reduced her pay because she was required to use sick time and vacation pay and, when those benefits ran out, she went without pay so that she could care for her son. The court noted the employer could have retaliated for Washingtons charge of discrimination by exploiting this vulnerability.
The Employers Defenses
Having found the employer might have retaliated, the court also noted that Washingtons case was by no means open and shut. That is, perhaps she had other options to care for her son without a flextime schedule; the change in working hours would not, in that case, be material. Further, perhaps the employer had a legitimate and non-retaliatory justification for rescinding her flextime schedule (perhaps there was no work to do from 7 a.m. to 9 a.m. while no one else was in the office; perhaps when she left work early, she left behind too much work for others to do). On the other hand, maybe the supervisor who rescinded Washingtons flextime schedule did not know her family situation. If that is the case, the employer did not knowingly retaliate. These issues, however, the court noted, would be decided at trial.
For more information on this case or for assistance in defending an employment claim under Title VII, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on the Internet at firstname.lastname@example.org.