Volume 19, No. 1 January 2007
Microinequities:
Should Employers “Sweat the Small Stuff”?
By Andrea D. Cherng and Eric A. Tate
Microinequities are the subtle
putdowns, snubs, dismissive
gestures, or sarcastic tones
that can undercut employee performance
and encourage employee turnover.1 Articles
in the New York Times, Wall Street
Journal, and Time Magazine, among other
publications, evidence the growing concern
of corporations across the country about
the impact of microinequities on employee
morale, productivity, and attrition. Recent
court rulings call into question whether
employers should fear that the latest HR
buzzword2 – microinequities – will become
a source of labor law liability for employers.
Put another way: Should employers “sweat
the small stuff”?
In June 2006, the U.S. Supreme Court
held in the case of Burlington Northern &
Santa Fe Railway Co. v. White that unlawful
retaliation under Title VII may include
actions that would not necessarily constitute
discrimination.3 Specifically, the Court
ruled that an employee need not prove that
he or she was subjected to a reduction in
pay, demotion, or other material change in
the terms and conditions of employment
to establish a retaliation claim.4 Rather,
a plaintiff can prevail merely by showing
that the alleged retaliatory conduct would
have “dissuaded a reasonable worker
from making or supporting a charge of
discrimination.”5
Similarly, in 2005, the Ninth Circuit Court
of Appeals in EEOC v. NEA held that “rude,
overbearing, obnoxious, loud, vulgar, and
generally unpleasant” conduct “not on
its face, sex – or gender-related” could be
grounds for an employment discrimination
claim under Title VII.6
These decisions arguably encourage
litigation over workplace incidents that,
when viewed alone, should not rise to the
level of actionable discrimination or sexual
harassment.
Against this backdrop of apparently lowered
legal standards for the severity of conduct
necessary to establish claims of employment
disc