“We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
The expected result is that more retaliation claims will survive summary judgment motions and more claims will be upheld by the courts subjecting employers to greater costs and potential liability. Although eliminating retaliation claims is the ultimate goal of employers, the question of how to minimize the number of claims that go to court becomes more even important after the Burlington decision. This article will discuss how establishing an organizational ombuds (sometimes called ombudsperson or ombudsman) office can help an organization address and resolve the underlying problems that eventually give rise to costly lawsuits before they spiral out of control.
The Facts of Burlington
The claims in Burlington arose from the following facts. Burlington Northern & Santa Fe Railroad Co. hired Sheila White in June 1997 as a “track laborer.” Included in the responsibilities of the job was removing and replacing track components, transporting truck material, cutting brush and clearing litter and cargo spillage from the right-of-way. Shortly after White was hired, the co-worker responsible for operating the forklift chose another assignment. White was assigned to operate the forklift as her primary responsibility although she continued to perform certain track laborer tasks as well. The forklift operator position was considered a coveted assignment.
In September 1997, White complained to Burlington officials that her immediate supervisor made insulting and inappropriate remarks to her. After an investigation, the supervisor was suspended for 10 days and ordered to attend a sexual harassment training session.
The Burlington official who hired White informed her of her supervisor’s discipline on September 26 and at the same time, told her that he was removing her from forklift duty and placing her back in the track laborer position for which she was originally hired. The justification given to White for the reassignment was the complaints of co-workers that “a more senior man” should have the job of forklift operator.
On October 10 White filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that the reassignment constituted unlawful gender-based discrimination and retaliation for her complaint against her immediate supervisor. In early December White filed a second complaint alleging that she has been placed under surveillance and her daily activities were being monitored.
Shortly after the second complaint was filed White had a disagreement with her new immediate supervisor who complained that White had been insubordinate. White was immediately suspended without pay. White invoked the company’s internal grievance procedures and the company ultimately concluded that White had not been insubordinate. Burlington reinstated White with back pay for her 37 day suspension.
How an Ombuds could help
An ombuds is a neutral, confidential, independent, informal resource for employees to raise issues and concerns. An ombuds does not replace the formal channels in the organization (i.e. Human Resources or the Legal Department) but instead supplements them. As an informal, confidential option the ombuds can free employees to raise issues including, but not limited to, discrimination and harassment without the fear of retaliation. Employees can safely approach the ombuds upon the initial instance of unwelcome behavior in order to determine and assess their options. If set up properly, as an independent resource outside of line management a consultation with the ombuds would not serve as notice to the organization and would therefore not require an investigation.
To use the facts in Burlington as an illustration, if Burlington had an ombuds office White could have visited the office after her September 26 reassignment to discuss her options in a confidential setting. One of her options was filing a formal complaint (the route she did in fact take). When discussing this option, the ombuds would have had White consider the possible repercussions of filing a formal complaint, such as retaliation. The ombuds would have made White aware of other options that she may not have known she had. These options could have included the ombuds coaching White to have a conversation with her supervisor or sending a letter to her supervisor. White could have asked the ombuds to approach the supervisor to see if he was willing to have the ombuds confidentially mediate or facilitate a conversation with her supervisor. That is not to say that White would not have filed a formal complaint even if she had approached an ombuds. Nor is there any assurance that she would have approached the ombuds at all. However, many people who believe they are victims of harassment or discrimination simply want the behavior to stop. As illustrated by Burlington, filing a formal complaint is not always the best way to accomplish that goal.
It is likely that the complaints that motivated White to report her supervisor occurred over a period of time. If White had the opportunity to discuss her options with an ombuds after one of the earlier incidents (which may have been minor), later more serious incidents may never have occurred. Even if White had filed the formal complaint leading to her supervisor’s discipline, the ombuds may have been able to play a role after Burlington reassigned White. The ombuds could have worked with White and the company to develop options that would satisfy both her interests and the company’s interests.
For example, Burlington may have had a valid interest in replacing White as a forklift operator with a more senior employee. However, this action following immediately on the heels of White’s harassment complaint screamed retaliation. Had an ombuds become involved at the time of White’s reassignment, options could have been developed to satisfy the interests of both White and the employer. Even if a solution that was acceptable to everyone could not be reached, it is possible that the communications between White and Burlington, could have given both a better understanding of the other’s concerns. These communications may have prevented a bad situation from escalating as it did with two additional EEOC complaints and a suspension.
One of the most important functions of an ombuds is to act as an agent of change by gathering general data to present to the senior management of the organization. An ombuds at Burlington might have been able to identify a pattern of harassment and discrimination prior to White’s reassignment, allowing Burlington management to take steps to train and educate its employees in these areas.
Training an education of managers are useful tools at an employer’s disposal in seeking to curb discrimination, harassment and retaliation. However, managers often take actions for what they believe to be valid reasons having no basis in discrimination, harassment or retaliation, without understanding how these actions may be perceived by the employee or a third party (i.e. a judge or jury). Without an ombuds, these situations will often lead to a formal complaint, an investigation and, quite possibly, a lawsuit. If an employee or manager approaches the ombuds, they may be able to develop an alternative course of action that serves everybody’s interests. The availability of an ombuds to White may have allowed the issues that gave rise to the lawsuit to be resolved early at the lowest possible level rather than having them snowball all the way to the Supreme Court.
This is not to say with certainty that an ombuds would have been able to resolve White’s issues before she went to court or that the establishment of an ombuds office eliminates the concern of employees suing the organization. Employees can not be forced to avail themselves of the ombuds office and some problems simply will not be resolved outside of court. However, the existence of an ombuds office gives employees another option to resolve conflicts. Even conflicts that do not result in lawsuits can cost organization money. Conflict that is ignored or not managed effectively can cause inefficiency, absenteeism and the loss of key employees. When ignored conflict can have a tremendously negative effect on employee morale and the bottom line. But when properly managed conflict can be a positive thing for an organization. The role of the ombuds in managing conflict within an organization in a constructive manner should not be underestimated.
Organizations that have created ombuds offices have done so for a variety of reasons. The commonality behind most of the reasons has been the occurrence of a publicly negative event such as a costly lawsuit or an investigation by a public agency such as the SEC. However, once the damage is done it takes many years for an organization to regain the trust of its employees and the public. The creation of an ombuds office is an effective tool in preventing incidents such as those in Burlington from escalating into a lawsuit as well as sending a message to employees that an organization is truly committed to protecting its employees from harassment, discrimination and retaliation.