The Supreme Court's Burlington decision: implications for the health care workplace.

Physician executives in all sectors of health care industry must have a thorough understanding of a dizzying array of both federal and state employment statutes. One of the most significant as well as complex employment laws is Title VII of the Civil Rights Act of 1964.

Needless to say, compliance is paramount as violations of this law can have significant consequences to employers. While the substantive anti-discrimination provisions of Title VII are rather uniform throughout the states, the retaliation provisions of Title VII have been interpreted in different ways by the various circuit courts.

As a result, employers may be liable for an employment retaliatory action in one state, and not liable for the same action in another state. The U.S. Supreme Court cleared up these differences, and as a result, employee claims will now be reviewed under the same broad standard throughout the country.

Title VII anti-retaliation provisions

Take a minute to review language of Title VII substantive anti-discrimination and anti-retaliation provisions. Section 703 is the anti-discrimination provision and states:

"It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." (1,2)

Section 704 (a) is the antiretaliation provision and states:

"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." (2)

The U.S. Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII. Last year, it received over 56,000 complaints with one quarter being for retaliation charges. (3)

It is important to keep in mind that even if the underlying discrimination lawsuit is dismissed, the retaliation claim may survive, resulting in a settlement or verdict for the employee. This brings us to the recent U.S. Supreme Court Decision.

Burlington

Plaintiff Sheila White was hired by Burlington Northern and Santa Fe Railway Company in 1997 as a track laborer and shortly afterward complained to management that her supervisor made gender disparaging remarks. Subsequently, the supervisor was disciplined and White was reassigned jobs.

Perceiving that the reassignment was an unlawful "gender-based discrimination," she filed a complaint with the EEOC. After filing the complaint, White claimed that Burlington retaliated against her for filing the discrimination claim and sought damages for the retaliation.

The case was submitted to a jury that found Burlington guilty of retaliation and awarded her $43,500 in compensatory damages. The verdict was upheld on appeal. (4)

Differing standards

The Supreme Court answered two main issues raised by Burlington. The first was whether the employer retaliation covered by Title VII is only limited to employer acts that affect the terms and conditions of employment. The second involved how much harm employees must incur to be covered by Title VII.

[ILLUSTRATION OMITTED]

Prior to Burlington, each court of appeals applied different standards. They ranged from a most restrictive test to a least restrictive test.

For example, the 5th and 8th Circuit Courts applied the most restrictive test, meaning that only retaliation actions involving "ultimate employment actions" such as firing and demoting were actionable.

In contrast, the 7th, 9th, 11th and District of Columbia Circuits used a least restrictive or expansive definition of retaliation. An example may be found from the 7th Circuit where an employer's action was found to be in violation of Title VII because the action "... would have dissuaded a reasonable worker from making or supporting a charge of discrimination." (5)

The remainder of the circuits fell somewhere in between these two standards. Due to a split in the circuits, the United States Supreme Court granted certiori and made a uniform rule applying to retaliation claims.

Supreme Court decision

The Supreme Court's decision was delivered by Justice Stephen Breyer. The almost unanimous court concluded that the scope of the anti-retaliation provision of Title VII is broad in nature.

Justice Breyer explained that an employer's retaliation action need not be limited to an ultimate employment decision. Instead, any retaliatory action that "could well dissuade a reasonable worker from making or supporting a charge of discrimination is a violation of Title VII." (6)

The Supreme Court was careful to limit the retaliatory action to those that are "material" to limit claims resulting in insignificant or trivial harm. (7) Justice Breyer noted that "Title VII does not set forth a general civility code for the American workplace, such as the sporadic use of abusive language, gender-related jokes, occasional teasing, and personality conflicts."

The court mandated a reasonable employee or objective standard in determining if the employer action is prohibited under Title VII. They note that the action must be viewed in light of the particular circumstances. (8) For example a schedule change may make little difference to most employees, but matter enormously to a mother with school-aged children.

Employer consequences

As a result of the broadening of the definition of actionable retaliation, employers will see more retaliation claims. Employee claims will no longer be limited to "ultimate employment actions." Instead, any retaliatory action that is "materially adverse to a reasonable employee and which may dissuade a reasonable worker from making or supporting a charge of discrimination" may lead to a claim.

As such, employers may take steps to prevent themselves from a retaliation claim. At minimum, every employer should have an Equal Employment Opportunity policy in force. In addition, an anti-retaliation stand-alone policy is wise in light of Burlington.

Training must go hand-in-hand with these policies. Supervisors and managers must understand their responsibility for preventing retaliation, while learning to interact with employees who have made a claim of discrimination or harassment.

Finally, any claim of retaliation must be thoroughly investigated and documented. Physician executives in all sectors of health care must be aware of the Burlington decision, and the implications for retaliation suits.

Christopher Spevak, MD, MPH, MBA, JD is a physician attorney practicing in Washington, D.C. He is the president of the Medical Society of the District of Columbia and a clinical associate professor at Georgetown University Medical Center. Spevak may be contacted at 202-321-0598 or [e-mail]

References

1. 42 U.S.C. [section]2000e-2(a)

2. 42 U.S.C. [section]2000e-3(a)

3. The U.S. Equal Employment Opportunity Commission Title VII of the Civil Rights Act of 1964 Charges. FY 1992-FY 2005. http://www.eeoc.gov/stats/vii.html

4. White v. Burlington Northern and Santa Fe Railway Co., 364 F.3d 789 (6th Cir. 2005)

5. Washington v. Illinois Department of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)

6. Burlington, 126 S.Ct. at 2409

7. Id. At 2415-16

8. Id. At 2417-18

Disclaimer -- This article contains the advice, opinions, statements and views of the author and does not necessarily represent the advice, opinions, statements or views of Georgetown University Medical Center or its physicians. The content of this article is provided solely for informational purposes. It is not intended as, and does not constitute legal advice. The information contained herein should not be relied upon or used as a substitute for consultation with legal, accounting, tax, career and/or other professional advisors.

By Christopher Spevak, MD, MPH, JD

[ILLUSTRATION OMITTED]