And this

Published: June 23, 2006

WASHINGTON, June 22 — The Supreme Court substantially enhanced legal protection against retaliation for employees who complain about discrimination or harassment on the job, in a ruling on Thursday.

The 9-to-0 decision adopted a broadly worded and employee-friendly definition of the type of retaliation that is prohibited by the basic federal law against discrimination in employment.

That law, Title VII of the Civil Rights Act of 1964, prohibits discrimination and prohibits employers from retaliating against workers who complain about discrimination. But the statute does not define retaliation, leading to disarray among the federal appeals courts and uncertainty for employers and employees alike. Under the standard applied by many courts, it has been almost impossible to win a retaliation case unless the retaliation resulted in dismissal.

By contrast, under the standard the justices adopted on Thursday in an opinion by Justice Stephen G. Breyer, any “materially adverse” employment action that “might have dissuaded a reasonable worker” from complaining about discrimination will count as prohibited retaliation. Depending on the context, retaliation might be found in an unfavorable annual evaluation, an unwelcome schedule change, or other action well short of losing a job.

Retaliation claims make up an important and rapidly growing part of employment law. Some 20,000 retaliation cases were filed with the Equal Employment Opportunity Commission in 2004, a number that has doubled since 1992. The cases now account for more than one-quarter of the federal agency’s docket.

“This is an exceptionally important decision that changes the law in most of the country,” Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview.

Lawyers representing employers agreed about the decision’s significance, but with considerably less enthusiasm. Karen Harned, executive director of the National Federation of Independent Business Legal Foundation, said the ruling would lead to “burdensome” litigation and was “particularly disappointing to small employers.”
Daniel P. Westman, an employment lawyer with the firm Morrison & Foerster who advises management, said he expected a “huge effect” from the ruling. Mr. Westman said employers would have to take special care to make sure that an employee who lodges a discrimination complaint does not suffer adverse consequences.

The decision upheld a finding of retaliation by a railroad company against a female maintenance worker who was transferred to less desirable duties within her job category and placed on an unpaid leave for 37 days after she complained about sexual harassment. She was reinstated with back pay after a grievance by her union.

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