DISCRIMINATION, RETALIATION AND THE FEAR OF FIRING Ashley Interrante Scheer Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas (214) (214) – Fax

Total labor force million Minorities (31%) 40 and over (52%) Female (46%) Unprotected*: White males under 40 (16%) *But not if the employee is: Disabled, gay, a whistle-blower, a veteran, foreign-born, called for jury duty, a workers’ compensation claimant Data: U.S. Bureau of Labor Statistics, 2006

Steps to Prevent Discrimination Claims 1.Provide a good anti-discrimination and anti-harassment policy 2.Provide for a reporting procedures with options 3.Document every complaint you receive 4.Conduct investigations 5.Conduct exit interviews

Steps to Prevent Discrimination Claims 6.Inquire as to determination 7.Ask departing employees for company documents or records 8.Assure compensation is up to date 9.Do not falsify a reason for termination or deny the truth 10.Obtain an effective release when appropriate

To establish a prima facie case of retaliation, a plaintiff must show: 1)he or she engaged in statutorily protected activity under Title VII; 2)the employer carried out an adverse employment action; and 3)a causal connection exists between the protected activity and the adverse action. Burlington Northern and Santa Fe Railway Co. v. White, 126 S.Ct. 2405, 2415 (2006).

BURLINGTON NORTHERN – HEADLINES THE DAY AFTER “HIGH COURT WIDENS PROTECTION FOR WORKERS AGAINST RETALIATION” Chicago Tribune “US WORKERS WIN MORE POWER IN JOB DISCRIMINATION LAWSUITS” MSNBC “COURT MAKES IT EASIER FOR WORKERS TO SUE” Seattle Times “RULING PROTECTS WORKERS FROM RETALIATION. FIRMS CAN’T PUNISH EMPLOYEES WHO FILE BIAS COMPLAINTS” San Francisco Chronicle

Holding: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” “We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employers’ actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” “By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe this standard will screen out trivial conduct while effectively capturing those actions that are likely to dissuade employees from complaining or assisting in complainants about discrimination.”

What does Burlington Northern mean? The retaliatory action need not occur at the workplace. The retaliatory action need not cause financial loss. Petty fights are not materially adverse. The action is viewed from perspective of the reasonable employee.

Steps to Prevent Retaliation Claims 1.Employers should make their anti-discrimination policies clear and accessible to employees. Ensure that your policies contain an express prohibition against retaliation. 2.When an employee reports alleged retaliatory conduct, investigate and audit the action. Good questions to ask: a.Who is the decision maker? b.Was the decision in accordance with existing company policy? c.What is the timing? d.Was there an opportunity to improve? e.Was the action fair? f.How would a third party view the conduct? 3.Document the communications. Always ensure that any claims of discrimination are kept separate from any performance memos. 4.Context is important. Scrutinize the actions to assess petty vs. normal workplace occurrences.

DISCRIMINATION, RETALIATION AND THE FEAR OF FIRING Ashley Interrante Scheer Jackson Walker L.L.P. 901 Main Street Suite 6000 Dallas, Texas (214) (214) – Fax