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High court loosens retaliation standard

 The U.S. Supreme Court has ruled that an employer’s action is retaliatory if it would have dissuaded a reasonable worker from making or supporting a charge of discrimination, even if there was no discharge, demotion, or loss of pay involved. The decision broadens the scope of anti-retaliation law, and, according to many experts, is likely to lead to an increase in retaliation claims.

     The court also said that retaliation can include acts outside the workplace, citing as an example an employer’s filing false criminal charges against a former employee who complained about discrimination.

     The case involved a railroad employee who was transferred from her job as a forklift operator to the job of track laborer after she complained about sexual harassment. Her pay and benefits remained the same, but she claimed the transfer was retaliatory because the track laborer job was dirtier, more physically demanding, and generally considered a worse job. The employee also claimed her employer retaliated against her when she was suspended for 37 days following an incident of insubordination, even though she was eventually reinstated with back pay.

     A jury awarded her damages, and a federal appeals court upheld the award. The Supreme Court took on the case to resolve a split among the circuits regarding the definition of retaliation.