The U.S. Supreme Court has now ruled in the Burlington Railway case that federal discrimination law provides employees protection from retaliatory acts such as ostracism, rudeness and insults even at non-workplace events such as attendance at golf matches or dinner parties, as well as protection against retaliatory workplace assignments and discipline. The Supreme Court held that such hostile acts, whether occurring at the workplace or away from it, can be actionable if they individually or in combination “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

When a charge of discrimination is made against a manager or a lawsuit is filed -- even when the manager is convinced that the complaint is unfounded -- the employee should generally be treated in and out of the workplace as though no complaint was ever lodged.

Employees can charge retaliation even when they have not been discharged or demoted and even if their pay has not been cut. It is important to realize that an employer can still lose the retaliation claim, even though it wins the underlying discrimination claim.

Steps the employer can take to lessen potential liability include:

• providing anti-retaliation training for managers and employees in general on an annual, documented basis (this can be in the form of documented, computerized learning or personal training, or bulletins given to managers to distribute to their staff)
• documenting that the employee knows or has been advised that s/he should immediately contact a designated H.R. person if he or she feels retaliation has occurred or is occurring
• keeping in close and continuing communication with the complaining party and the manager to assess the ongoing relationship and any additional intervention needed
• independently monitoring the workplace on an ongoing basis for satisfaction levels among the staff and inter-relationships with management
• responding to complaints of retaliation promptly and in accordance with written policy

The Burlington decision will likely result in more retaliation cases being filed. Nevertheless, it is important to the company’s success that the employer not be intimidated by a complaining party and that the employer continue to expect and demand proper job performance and conduct from all employees, including any who lodge complaints.