Sabatini and Associates, LLC Attorneys at Law :: Newington :: Hartford :: Connecticut

In Burlington Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), the Supreme Court expanded the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.  The Court expanded the defiinition of retaliation to include any “materially adverse” action that might “dissuade a reasonable worker from making or supporting a charge of discrimination.”  The anti-retaliation provision seeks to prevent harm to individuals for reporting or complaining of discirmination in the workplace.  The Court found that an employer can effectviely retaliate against an employee by taking actions not directly related to his or her employment or by causing harm outside the workplace.  In recognizing this, the Court wisely determined that to prove employer retaliation, the employee does not need to show that the retaliation resulted in job loss, demotion, or material loss of benefits.  What the employee needs to show is that the employer’s conduct in response to the reporting of discrimination would dissuade a reasonable worker from making or supporting a charge of discrimination.  Based on the expanded definition, the big factual issue in these cases will be about whether the employer’s conduct was material adverse or trivial.  The issue will be based upon the unique facts in each case.  For example, the employer’s changing of a schedule might not affect most employees but it would certainly affect a young mother with three school age children.  Another example would be if the supervisor no longer invites the employee to lunch.  It most cases this would be trivial.  But if the lunch time also involved job training then it would amount to actionable retaliation.  The Court’s decision is a victory for workers.  It also promotes public policy behind the anti-retaliation provisions of Title VII – namely that we are seeking a workplace without discrimination and to acheive that goal workers need not be fearful of charging discrimination in the workplace.

I am currently on trial on an informed consent claim.  My client contends that the material risks associated with the surgery were not communicated to her prior to the surgery by her doctor.  The doctor contends that while she does not specifically recall disclosing the materials risks, it was her habit and custom to do so and the patient did sign multiple informed consent forms.  However, the forms only state that the risks were communicated.  The forms do not describe the risks.  During the course of the trial, I have come to realize that it is in the patient’s best interest to request that the surgeon document the specific material risks associated with the surgery.   If this is done and an unsatisfactory outcome does arrise following the surgery there will be no debate as to what if any specific material risks were communicated to the patient prior to surgery.  Obviously, there will be circumstances such as in an emergency that this cannot be done.  But certainly in cases where the patient is considering elective surgery, a request of the surgeon to write down the risks is reasonable and if the surgeon refuses to do so,  perhaps the patient should look to another surgeon to perform the surgery.