In last year’s Burlington Northern decision, the U.S. Supreme Court lowered the burden for plaintiffs alleging retaliation under Title VII.  In that case the Court defined retaliation as any employment action that might deter an employee from filing a complaint with the EEOC.  In Burlington Northern, placing the employee on unpaid leave, and later reinstating her with full back pay was deemed retaliatory because the employee was not paid during the initial leave.  A new case from the Fifth Circuit Court of Appeals expands upon this decision and classifies paid leave as potentially retaliatory under Title VII.  In McCoy v. City of Shreveport, the plaintiff was a police officer who filed an internal complaint alleging harassment by her supervisor.  After her claims were dismissed by the City, she requested that she be relieved from her duties due to stress.  The City placed her on paid administrative leave in response to her request.  She sued, claiming among other things, that the mandatory paid leave constituted retaliation under Title VII.

 

The Fifth Circuit refused to dismiss on its face the plaintiff’s retaliation claim.  Even if an employee is placed on paid leave, the court concluded that he or she could be stigmatized by the action, and could suffer at least emotional distress from being removed from the job.  The City ultimately prevailed on the retaliation claim, because the plaintiff could not show evidence that she was placed on leave in retaliation for any legally protected action.  However, the court’s decision effectively reduces employers’ options in responding to employment problems.  Employers have assumed that paid leave essentially puts a problem situation “on hold,” and gives them time to investigate the matter, or decide on an appropriate course of action.  If even paid leave is now considered potentially retaliatory, employers must consider this possibility when deciding how to react to an urgent situation.