• No Good Deed Goes Unpunished? Seventh Circuit Rules That No Adverse "Employment" Action is Necessary to Sustain Title VII Retaliation Claims
  • September 14, 2005 | Authors: John J. Michels; Rodney A. Satterwhite
  • Law Firms: McGuireWoods LLP - Chicago Office ; McGuireWoods LLP - Richmond Office
  • The Seventh Circuit Court of Appeals recently issued a panel opinion holding Title VII retaliation claims brought under §2000e-3(a) of the Act, unlike discrimination claims brought under Section §2000e-2(a), do not require a showing of an "adverse employment action" by the employer. See, Washington v. Illinois Dept' of Revenue, 7th Cir. No. 03-3818. The opinion, drafted by Judge Easterbrook, reflects what is seemingly the minority view in a split among the circuits on this issue. Ultimately, however, the Washington Court determined that the language in Section 2000e-3(a) of the Act is broader than 2000e-2(a), and encompasses forms of retaliation not traditionally held to be "adverse employment actions" for the purposes of Title VII discrimination claims.

    Executive Secretary, Chrissy Washington worked for the Illinois Department of Revenue on a flexible schedule from 7 a.m. to 3 p.m., instead of the standard 9-5 schedule, allowing her to care for her son with Down Syndrome. When some of her duties were reassigned to others, she filed charges with state and federal agencies alleging race discrimination. Subsequently, a senior manager required that she work from 9 to 5, and when she refused, her position was abolished. Washington was assigned to another Executive Secretary post with a different supervisor and was required to apply anew for a flextime schedule, which was refused. Washington maintained that it was her prior discrimination charge that led supervisors to rescind the flextime schedule on which her son depended.

    In reversing the lower court's opinion and remanding the case for trial, the Seventh Circuit acknowledged that lateral transfers, which do not affect pay or significantly affect working conditions such as this, do not generally constitute adverse employment actions for the purposes of discrimination suits brought under Title VII. But the court concluded (with a highly entertaining reference to the comic strip Dilbert) that where an employer retaliates for protected activity by exploiting an employee's known vulnerability, such as Washington's reliance on flextime to care for her disabled son, the action can be a material change sufficient to sustain a retaliation claim under Title VII. The standard for materiality, the court noted, is whether the employer's action has the "potential" to dissuade an employee (and, by logical extension, other employees) from pursuing her rights under Title VII.

    Although this opinion does not reflect a uniform view among the jurisdictions on the ultimate issue, it should serve to alert employers to some of the potential problems that can arise from the implementation of flextime schedules and other employee-friendly initiatives. The court clearly says that once these admittedly optional benefits are in place for an employee, their removal can serve as a basis for retaliation claims.