In a 2006 case entitled Burlington Northern & Santa Fe Railway Co. v. White, the United States Supreme Court opened the door to employee lawsuits based on alleged retaliatory actions taken by an employer.  In the past, the courts were reluctant to allow a case to go forward unless the employee was able to show that the alleged retaliatory conduct impacted his or her compensation, terms, conditions or privileges of employment.   Now, however, in Burlington Northern, an employee must only show that a reasonable person would have been dissuaded from exercising his or her rights as a result of the employer’s retaliatory actions.

The Burlington Northern Court is disconcerting to employers as it appears to further expand the law of retaliation available to an employee.  Exactly what kind of employer actions would be unrelated to an employee’s employment, but are nevertheless actionable under discrimination laws, is unclear.  However, it appears that the Court intended to broaden the scope of a potential retaliation case thereby giving the employee additional ammunition in an action against the employer.

Employers need to understand that the new scope of retaliation available to an employee has been broadened.  Managers and human resource professionals must be aware that the expanded Court view of retaliation may hold an employer liable for actions that in the past would not have been actionable.