A License To Complain

Last Thursday, the Supreme Court ruled that a worker alleging retaliation for complaining about discrimination may sue even if she has not suffered a tangible loss, like a firing or denial of a promotion. In its decision in Burlington Northern v. White, the Supreme Court ruled that under Title VII of the Civil Rights Act, “retaliation” includes any act that “well might have dissuaded a reasonable worker” worker from complaining. The court upheld a $43,500 judgment in favor of an employee who was reassigned to different tasks and then suspended for a month before being reinstated with full backpay.

The court’s low bar for what constitutes retaliation turns many mistaken complaints of discrimination into future lawsuits. Under federal court rulings, even groundless complaints are often protected against retaliation. Complaints to an employer are protected as long as the complainant reasonably believes that discrimination or harassment occurred, even if it didn’t. And complaints to the EEOC are protected even if they are plainly unreasonable, intemperate, and false. So an employee who has never been discriminated against can sue over deteriorating relationships with co-workers whom the employee has falsely accused of discrimination, claiming that the bad relationships constitute a “hostile environment” in retaliation for claiming discrimination.

In an attempt to forestall some such suits, the Supreme Court added a caveat to its test. It declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a claim of discrimination do not rise to the level of retaliation, since they would not be sufficiently “materially adverse” to dissuade someone from complaining of discrimination. Whether or not that caveat is consistent with the court’s general test, it is welcome from a First Amendment perspective. As Judge Kozinski observed in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), banning all criticism or ostracism in response to a discrimination charge may well violate the First Amendment freedoms of speech and association.

But the Supreme Court’s caveat may not be enough to protect First Amendment rights. For example, in Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997), a mayor publicly denounced as unfounded a sexual harassment complaint against him. It is easy to see how such a public denial might dissuade a publicity-shy complainant from bringing an accusation. But as the Massachusetts Supreme Court observed, defining his speech as unlawful retaliation would clash with the First Amendment. Retaliation prohibitions are “subject to constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Since the Supreme Court has set the bar so low, the courts may need to exempt speech about the merits of discrimination claims to prevent censorship.

But some judges will probably refuse to do so. Judge Myron Thompson held an employer liable for retaliation for publicly criticizing a discrimination complaint, rejecting a First Amendment defense on the ground that since sexual harassment law supposedly trumps the First Amendment, so do laws against retaliation.