Year after year, retaliation claims are among the most difficult to defend. They just became more difficult.

The United States Supreme Court’s recent decision in Burlington Northern & Santa Fe Railway Co. v. White has significant implications for employers in how they deal with employee complaints of unlawful discrimination or harassment.

In Burlington, the plaintiff initially complained internally of sex discrimination and harassment by her immediate supervisor. Her employer did the right thing in response: the company launched an investigation and ultimately suspended the supervisor and required him to attend sex harassment training.

The employer’s problems began with what happened next. It then assigned the plaintiff less desirable tasks within her job classification. She filed an EEOC charge of discrimination in protest, now claiming sex discrimination and retaliation. The following month, she filed a second EEOC charge alleging that management had placed her under surveillance and was monitoring her daily activities. Not long thereafter, the plaintiff became involved in a disagreement with another supervisor and was suspended without pay. Her suspension was eventually overturned through an internal grievance procedure, and she was paid in full for the 37 days she had been off work. Not surprisingly, she filed a third EEOC charge, alleging that her suspension was retaliatory.

The Supreme Court agreed to hear the Burlington case to resolve a key question on which courts across the country have disagreed: what type of adverse action by an employer or employer’s representative is significant enough to create a potential retaliation claim? The Supreme Court’s answer was broader than many courts previously had concluded. Now, any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” can be challenged in a retaliation lawsuit. This definition includes a wider range of actions than the standard for discrimination claims, which generally only reaches actions that affect the more tangible terms of an individual’s employment, such as pay, demotion, failure to promote, suspension, discharge, and the like. Not so in the case of retaliation claims. That difference, says the Supreme Court, is intentional. In fact, the Supreme Court ruled that Title VII’s anti-retaliation provision can even reach events outside the workplace.

The range of alleged events that can form the basis of a retaliation claim has some limitations. The challenged action must be material, that is, more than a trivial harm. In the Supreme Court’s words: “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Neither the plaintiff’s relegation to more difficult job duties nor the 37-day suspension were, in the Supreme Court’s view, “petty slights” or “minor annoyances,” and so the court ruled in her favor.

The line drawn by the Supreme Court is not entirely clear. However, actions challenged as retaliatory by an employee will be judged using an objective standard, sort of: whether the actions would discourage a reasonable worker in the plaintiff’s situation from complaining. Even minor job changes, as well as critical or unfair behavior by supervisors or managers toward a complaining employee, can now put an employer on the hook if a jury determines the actions to be motivated by unlawful retaliation and if someone in the plaintiff’s shoes might have been discouraged from complaining. The Supreme Court made clear that the analysis can differ from employee to employee, mentioning as an example that while a schedule change may make little difference to many employees, it “may matter enormously to a young mother with school age children.” That example is particularly applicable to the quick-service restaurant industry, in which employees are often needed for weekend and night work. After the Burlington decision, even an employee’s temporary move from days to nights or a few extra weekend shifts are now potentially bases for a retaliation lawsuit.

So what should an employer do to minimize its risk under this “moving target” standard?

1. Reinforce and reeducate. Make certain that the company’s anti-retaliation policy is implemented and enforced at all restaurant locations, with significant disciplinary consequences for those who violate it. All levels of management, from corporate executives to shift supervisors, should receive regular training in identifying and avoiding potential retaliatory conduct. Employment decisions that are much less significant than suspensions and discharges, and thus often made at a much lower management level, are now open to potential challenge. It is therefore more critical than ever that every employee with any supervisory authority be aware of the potential pitfalls of perceived retaliation.
2. Have a reasonable reason. Even seemingly minor employment decisions are now subject to challenge. Courts are deferential to an employer’s legitimate business judgment, but “just because” is virtually guaranteed to get an employer in front of a jury, and it is not a “reason” that a jury is likely to accept.
3. Document, document, document. Events that seem less significant are more easily forgotten, and documentation is all the more important.
4. Be consistent. Confirming that any employment decision made regarding an employee is consistent with the prior treatment of other employees goes a long way toward rebutting a claim that the decision was motivated by illegal retaliation.
5. Don’t let the cat out of the bag. Employers should implement a “need to know” policy regarding employee complaints. If possible, only those management officials who by virtue of their roles need to be aware of a complaint of discrimination or harassment should be alerted. An assistant manager or shift supervisor cannot “retaliate” against a complaining employee in any legal sense if he or she does not know that the employee has complained.

An employer cannot absolutely insulate itself from retaliation claims altogether. Taking proactive steps, however, such as these can help maximize the company’s ability to defend retaliation claims successfully and minimize the monetary exposure in the event of an unfavorable verdict. Now more than ever, an ounce of prevention really is worth a pound of cure.