Court Redefines Harassment Retaliation

August 18, 2006
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GRAND RAPIDS — Withholding pay, benefits or other compensation is no longer the only act that can be considered “retaliation” against an employee who has made or participated in an allegation of harassment or discrimination.

With the U.S. Court of Appeals for the Sixth Circuit Court decision on Burlington Northern & Santa Fe Rail Co. v. White on June 22, the definition of retaliation has changed to include anything that would deter a reasonable employee from making a complaint.

In that case, the employee was suspended without pay for 37 days, and while she did receive back pay, the judges ruled that the suspension may have dissuaded a reasonable employee from making or supporting a discrimination charge, said Karen VanderWerff, partner at Warner Norcross and Judd.

VanderWerff said because of the new definition of retaliation, employers need to be more aware of what is happening in their company.

“I think human resource individuals and companies need to be much more on top of a situation when someone files an internal complaint of harassment or discrimination,” she said. “They need to closely monitor the situation to make sure that retaliation is not occurring.”

The courts now may grant employees monetary damages even without a monetary loss. A change in job shifts or responsibilities are two examples of what now could be considered retaliation.

“What the court found was there was an adverse action because what she was doing was more difficult or the job was viewed as less favorable,” she said.

David Smith, president of The Employer’s Association, said while the ruling is significant, he does not think it will have much effect on area businesses.

“I don’t see that as a huge change in the way we do business in West Michigan,” he said. “Traditionally, the area has been much more open, much more investigative. If there is an issue, the issue is pretty much addressed instead of staying buried or hidden.”

Smith said most employees recognize that if they bring a complaint, it will be investigated and decisions will be made accordingly.

“If we know, we’re going to act. We’re going to investigate. We’re going to get to the bottom of it.”    

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