A decision last week by the Second Circuit might seem fairly trivial. After all, the Court stamped a "summary order" in the case of Cunningham v. NY State Dept. of Labor (download here) on June 10, 2009 thereby making sure the case doesn’t have precedential effect.
But employers shouldn’t ignore this decision; it illustrates the differences between retaliation and discrimination claims and the relatively low standard necessary to bring a claim of retaliation and get such a claim before a jury.
The case discusses what is an "adverse employment action".
Without getting too technical, think of an adverse employment action as something that an employer does that is bad enough that the employee can then sue.
After all, ordinary everyday work grievances are not enough; the employer must do something more than that in order for the employee to then be able to bring a claim.
But is it possible for an employer to take an adverse action that is not enough to support a claim of discrimination, but IS enough to support a claim of retaliation? The court answers that question "yes" in Cunningham.
In Cunningham, the employee claimed that he was reassigned from a fifth-floor office to a first-floor office (among other things). The court said that this was not enough to state a claim for discrimination. In other words, that claim isn’t the type of "adverse employment action" that can support a discrimination claim.
But the employee’s retaliation claim survives because the standard of what an "adverse employment action" is different and less demanding for those claims.
The Second Circuit concludes that "[i]n a retaliation claim, ‘[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’”
The court goes on to state that "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.’”
You might scratch your head at first but you’ve read that correctly: the Court is, in essence, saying that reassignment of an office isn’t enough to bring a discrimination claim over, but is enough (at least here) to bring a retaliation claim. Put another way, different standards apply to both claims.
What’s the takeaway for employers? As I’ve stated previously for retaliation claims, careful documentation of the decisions you make as well as consistency, can help minimize the risk that the claims will go anywhere. But as this case demonstrates, it’s not going to take a lot for an employee to be able to satisfy the low burden necessary to keep such a claim alive.
(H/T Wait a Second)