A very thoughtful case out of the 7th Circuit regarding Title VII Retaliation: Chrissie Washington v. Illinois Department of Revenue, Cause No. 03-3818 (7th Cir. August 22, 2005).
Between 1984 and 2000, Chrissie Washington worked from 7 a.m. until 3 p.m. instead of the standard 9-to-5 schedule at the Illinois Department of Revenue. The earlier hours allowed her to care for her son, who has Down syndrome, when he arrived home. By 1995 Washington had been promoted to Executive Secretary I. Over the next few years some of her duties were reassigned to others. Believing that this was the result of race discrimination, she filed a formal charge with state and federal officials in June 1999. That charge, she maintains, led supervisors to rescind the flextime schedule on which her son depended. A senior manager demanded that she work from 9 to 5 and, when she refused, her position was abolished.
She sued under Title VII of the Civil Rights Act of 1964, claiming that the agency moved her to a 9-to-5 schedule in retaliation for her earlier charge of discrimination. The judge granted summary judgment for the agency because, he concluded, Washington had not established even a prima facie case of retaliation. She could not do so, the judge ruled, because a change of work hours, while salary and duties remain the same, is not an ?adverse employment action.?The Circuit Court noted that Section 2000e-3(a) [governing retaliation claims] is ?broader? than §2000e-2(a) [governing plain vanilla discrimination claims] in the sense that retaliation may take so many forms, while §2000e-2(a) is limited to discrimination ?with respect to [the worker?s] compensation, terms, conditions, or privileges of employment?. Retaliation may even take the form of acts outside the workplace. The Department of Revenue (the employer in this case) might have audited the plaintiff?s tax returns in response to her complaint to the EEOC, or hired a private detective to search for a disreputable tidbit that could be used to intimidate her into withdrawing the complaint. "When the employer?s response does not affect a complainant?s terms and conditions of employment, it is vain to look for an adverse ?employment? decision." But this does not mean it is nretaliatione retalliation. "Section 2000e-3(a)'s [ban on retaliation] is broader than the anti-discrimination rule in §2000e-2(a) in the sense that it extends beyond pay and other tangible employment actions."The issue, according to the Court, is whether the action complained of by a plaintiff is "material". ?Discrimination? entails a requirement that the employer?s challenged action would have been material to a reasonable employee, which means that the same requirement applies to §2000e-3(a), the antiretaliation clause, as well as the other provisions in Title VII that use the word ?discrimination.? An employer?s action is not material under §2000e-3(a) if it would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Here's the money quote:
By and large a reassignment that does not affect pay or promotion opportunities lacks this potential to dissuade and thus is not actionable. But ?by and large? differs from ?never.?
The Court goes on with an interesting example of its point:
Now ?material? is one of those protean wordsthat resists further definition. This holds opensome potential to say that an act that would beimmaterial in some situations is material in others. Forexample, suppose that the employee?s charge of discriminationis designed to obtain a $10,000 annual raise. Movingthat employee in response from a 100-square-foot cubicle toa 70-square-foot one, or to one with a metal rather than awooden desk, would not be a material change in the conditionsof employment, because petty bureaucratic nastinessdoes not dissuade a reasonable person from seeking asubstantial increase in income. If instead of seeking moneyfor himself the employee supported a colleague?s charge ofdiscrimination, however, this sort of response might inducethe employee to withhold support; it takes less to deter analtruistic act than to deter a self-interested one.
The Court calls this type of company behavior "Catbert" management, named for the evil human resources officer made famous in the popular Dilbert comic series.
This record suggests that the Illinois Department of Revenue may have a Catbert in its management, seeking out devices that would be harmless to most people but do real damage to select targets. What Washington [the plaintiff] alleges?that her job was abolished and that she was then placed in a ?new? Executive Secretary I position?would for most people be no different from a change of supervisors, a step that would not be discriminatory under Ellerth and the Supreme Court?s other decisions. But because Washington was assigned to a ?new position? rather than just a new supervisor, she had to reapply for a flex-time schedule. The approval she had received in 1984 covered only her ?old? position, and the Department insisted that she work a normal 9-to-5 schedule at her ?new? job. What the Department effectively did, then, was assign her a new supervisor and change her hours. Again this would not be materially adverse for a normal employee?but Washington was not a normal employee, and Catbert knew it. She has a vulnerability: her son?s medical condition. Working 9-to-5 was a materially adverse change for her, even though it would not have been for 99% of the staff.
This is a thoughtful argument and direction that Plaintiff's attorneys should pay great attention to in retaliation cases.Link to the Opinion Link to the Oral Argument (mp3)Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer