Wednesday, November 30, 2011

Stuck in the cubicle

Retaliation claims under Title VII require the plaintiff to show that management's response to her complaints about discrimination would deter a reasonable person from against speaking out in the workplace. That's the rule under Burlington Northern v. White, 548 U.S. 53 (2006), and it's a generous one. But it won't get you a trial in every case.

The case is Roncallo v. Sikorsky Aircraft, a summary order decided on November 21. What does it take to shut up workers who complain about discrimination? And what does management have to do for plaintiffs to sue for retaliation? When the Supreme Court in the Burlington Northern case came up with the legal standard governing these cases, it created a separate "adverse employment action" from that utilized in the more traditional disparate treatment cases, which require a material change in job conditions (such as termination, demotion, loss of pay) in order to prove the plaintiff suffered discrimination. Retaliation claims became a little easier for plaintiffs to pursue under this standard. And Burlington Northern contradicted the view -- held by many -- that the Supreme Court is comprised of pro-corporate Justices.

Not every retaliation case proceeds to trial, though. In this case, the plaintiff said that he was a retaliation victim because he was temporarily moved from an office to a cubicle. No one wants to work in a cubicle if they can work in an office, and to use a baseball analogy, going from an office to the cubicle is like going from the major leagues to a AA minor league team in Duluth. To use a rock and roll analogy, it's like going from Madison Square Garden to Joe's Pub in rural Wyoming. But perhaps these analogies try too hard. These downshifts are substantial, but you get the point. Going from office to cubible is not considered a dramatic job change. The Second Circuit (Sack, Wesley and Katzmann) disposes of this argument in short order. The temporary move to a cubicle is not an adverse action.

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