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Employment Alert

Nancy Puleo December 1, 2006

United States Supreme Court Expands Worker Protection from Retaliation Under Title VII

The United States Supreme Court gave a huge victory to employees by ruling that retaliation claims under Title VII are not limited to actions related to employer conduct that affects the terms and conditions of employment. Retaliation includes actions that would dissuade a reasonable worker from making or supporting a charge of discrimination. Going forward, the courts must decide on a case-by-case basis whether “reasonable” employees would be intimidated by the actions their employers take against them.

In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court considered how harmful an adverse action against an employee must be in order to constitute a violation of Title VII. Title VII generally forbids an employer from discriminating against an employee because that person has opposed any practice made unlawful by Title VII, or made a charge, testified, assisted or participated in a Title VII investigation or similar proceeding. 

In Burlington, White, the only woman in her department, operated the forklift at its Tennessee rail yard until she complained that her immediate supervisor had sexually harassed her. The supervisor was disciplined and White was promptly reassigned from her forklift position to a more general laborer position. It was undisputed that the laborer position was more arduous than the forklift operator position. White filed a charge of discrimination with the Equal Employment Opportunity Commission challenging her reassignment and alleging gender discrimination and retaliation. She also filed a second retaliation claim alleging that her new supervisor placed her under surveillance and was monitoring her daily activities. Almost immediately after filing her second retaliation charge, White had a disagreement with her supervisor, which resulted in suspension for insubordination without pay for one month. After a union grievance, White was reinstated to her position and received back pay for one month. White’s retaliation claims eventually proceeded to trial on two grounds: the first was based on Burlington’s decision to change her job responsibilities and the second was based on its decision to suspend her without pay. A jury found in White’s favor on both of her claims and awarded her compensatory damages of $43,500. 

The Supreme Court set forth the appropriate standard for determining what constitutes an adverse employment action in a retaliation case. The Court held that Title VII’s retaliation provision can be read broadly. The Court differentiated Title VII’s anti-discrimination provision from its retaliation provision and ruled that it is broader in scope and intended to deter any action that may interfere with an employee’s efforts to enforce his or her rights under Title VII. The Court held that Title VII’s anti-retaliation provision protects an individual from all retaliation that “produces an injury or harm.” The challenged action must be “materially adverse,” so as to dissuade a reasonable worker from making or supporting a charge of discrimination. 

The Burlington decision is likely to increase employee retaliation lawsuits spawned by employers' perceived retaliatory actions.  The Burlington case illustrates the importance of employers taking special precautions to ensure that there is not even an appearance of retaliation against employees who make complaints about alleged discrimination. In order to counter this upswing in retaliation claims, employers should include in their management trainings and personnel manuals information about applicable whistleblower laws. Employers should also have a strong internal policy against retaliation for discrimination complaints by employees.

Restrictions Placed on Employer’s Access to Employee’s Personal Internet Email Account

The Massachusetts Superior Court issued a decision that extends the attorney-client privilege to an employee’s personal email account accessed on an employer’s computer. In the matter of National Economic Research Associates, Inc. v. Evans, the Court considered whether the attorney-client privilege protected emails sent from an employee’s Yahoo account to his attorney via his employer’s computer. The employee argued that he did not waive the attorney-client privilege because he intended his communications with his attorney to be private and was unaware that the communications would be overheard or conveyed to others. 

In concluding that the emails were protected by the attorney-client privilege, the Court found that a reasonable person, in the employee’s position, would not have recognized that email communications with his attorney made from a private Internet email account could be read by his employer simply by examining the hard drive of his work computer.  Accordingly, he could not have reasonably understood that the attorney-client privileged emails could be “overheard” by his employer. The Court reached its decision despite the fact that the employer maintained a Policies and Procedures Manual which, among other things, stated that “all computer resources are the property of the Company,” and that “the Company may, from time to time and at its discretion, review any information sent or stored using these resources.” The employer also maintained a policy prohibiting the use of the Internet for personal use and which stated, “any misuse of Internet resources can be easily traced.” The Court noted that while the employer’s computer policies warned employees that Internet sites would be monitored, it did not warn employees that the content of Internet communications would be monitored or that such communications were stored and capable of being read. 

As demonstrated by this decision, the use of personal email accounts presents an issue of whether an employee has a reasonable expectation of privacy in his personal email account when accessed on his employer’s computer. This decision provides some clarity for employers because the Court suggested that employers use the following language in their personnel policies:

Employees should be aware that communications on a company-owned computer made through a private, password protected Internet email service are stored on the hard disk of the company’s computer in a “screen shot” temporary file. The company expressly reserves the right to retrieve those temporary files and read them.

By using the above language, or similar language, Massachusetts employers can address employees’ privacy concerns. If employees are provided with notice that their Internet communications are capable of being read and stored, they may be precluded from successfully making the argument that their communications to others, including attorneys, were intended to be private.

If you have any questions about the application of this news to your organization's particular situation, please contact any of the following attorneys of our Employment Group:

Rosanna Sattler

Valerie C. Samuels

Nancy J. Puleo

Client Advisory is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2006 Posternak Blankstein & Lund LLP. All rights reserved.

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