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What It Does — and Doesn’t Take to Establish a Case for Retaliation in Violation of Title VII

We probably all can imagine what a workplace retaliation situation might look like. An employee speaks up against discrimination, harassment, or some other illegal conduct, and for speaking out, that worker loses their job. But job loss is far from the only form of retaliation for which you can take action. In fact, under Title VII, the federal discrimination statute, retaliation can be anything that a reasonable worker would construe to be materially adverse to them. That potentially can be a wide spectrum of things. If you think you’ve endured retaliation at work, get in touch with an experienced New Jersey retaliation lawyer to learn more about your legal options.

As an example, there’s the recent retaliation case of Y.C., an intake officer with the New Jersey Department of Child Protection & Permanency.

For Y.C.’s first 18 months, the department assigned new cases on a “straight rotation” basis. Starting in September 2013, though, the officer’s supervisor instituted a new “modified rotation” system designed to ensure that all new cases involving Spanish-speaking families got assigned to Y.C. or one of the office’s three other Spanish-speaking intake officers. She objected, arguing that the modified rotation system would place a heavier burden on the four bilingual intake officers.

That objection allegedly turned her into a target, with a series of supervisors raining down various forms of hostility, including “lower performance reviews, micromanagement, heightened scrutiny, severe and disproportionate actions for alleged violations of [department] policy, and a failure to reasonably accommodate a transfer request.”

On those bases, the officer eventually sued for both national origin discrimination and retaliation. The discrimination claim failed, as the proof the officer presented fell short of demonstrating either illegal disparate impact or impermissible disparate treatment.

The Difference Between Retaliation Under Title VII Versus CEPA Retaliation

The officer’s retaliation claim fared better, surviving the employer’s motion for summary judgment, meaning that the officer was free to proceed to trial on that ground. In making that decision, the court highlighted the fact that the viability of a plaintiff’s retaliation claim depends, in part, on the underlying legal violation that prompted the employee’s initial protected activity.

Both New Jersey’s Conscientious Employee Protection Act (a/k/a the state’s whistleblower statute) and federal Title VII contain prohibitions against retaliation. However, as the court expressly noted in its opinion, the standard for employer misconduct to qualify as illegal retaliation under the CEPA is higher than the standard for impermissible retaliation under Title VII, which means that the same set of alleged facts could yield an unsuccessful CEPA retaliation claim but a viable Title VII retaliation one.

Moreover, the standard for what can qualify as illegal retaliation under Title VII is actually relatively broad. Based on a 2006 U.S. Supreme Court ruling in the case of Burlington Northern & Santa Fe Ry. Co. v. White, a worker asserting a claim of Title VII retaliation need only demonstrate that “a reasonable employee would have found the challenged action materially adverse.” According to the court, this material adversity standard means anything that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

As the court explained, context matters a great deal in determining these retaliation issues, as things that might normally be trivial or benign in some circumstances might be adverse to a reasonable employee in other contexts. The court used a modification to an employee’s daily work schedule as an example. While perhaps insignificant to most workers, a change potentially could be severely adverse if the affected employee was a parent with school-age children. Exclusion from a lunchtime get-together might typically be trivial… unless that event was a training lunch and that training played a key role in the employee’s professional development.

Using the facts from Y.C.’s case, it’s possible for things like disciplinary write-ups or negative performance reviews to have only small impacts on employees in some workplaces, but it’s also possible for these actions to play substantial roles in other workplaces when it comes to things like raises, promotions, and other forms of professional advancement. For those reasons, it was possible (at this point in Y.C.’s case) for the retaliation she alleged to meet the hurdle Title VII erects.

As a worker, you should not fear losing your job — or other workplace punishment — because you stood up against unfair or inequitable workplace policies or practices. If that has happened to you, you may have a legal claim. Reach out to the knowledgeable New Jersey employment retaliation attorneys at Phillips & Associates to find out more. Our attorneys have extensive experience helping workers like you to protect your rights. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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