William Blake sued Baltimore County in 2007 for retaliation. Blake had testified, after being subpoenaed, in a case brought by a fellow officer claiming to have been forced into early retirement in violation of the Americans with Disabilities Act. The next day the County ordered him to report to its chosen physician to determine if he was fit for duty. He was also ordered to bring voluminous medical records. Officer Blake felt compelled to comply with the order, since if he defied his superior he could be fired. But he was quite disturbed by the intrusion into his medical history.
The asserted reason for this exam was a ten-year old single instance of a seizure, which the County had not revisited since it happened until the date after Officer Blake’s testimony. The County’s physician concluded that his physical condition presented no obstacle to his continuing to work. The County followed up with further orders to undergo tests.
Officer Blake presented a classic case of retaliation for participating in a proceeding alleging discrimination. While retaliation has always been illegal, the courts for many years narrowed the ability to pursue a retaliation claim by requiring the retaliation to take the form of a tangible employment action, typically firing or demotion. So the employee who was moved to a tiny office and given no work to do was unable to pursue a retaliation claim.
That was the case until the Supreme Court widened the definition in the case of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court instructed that illegal retaliation occurs when the retaliatory treatment would dissuade a reasonable employee from making or supporting a discrimination claim in the future. It contrasted the anti-discrimination and the anti-retaliation provisions of the laws forbidding workplace discrimination: the anti-discrimination provision “seeks to prevent injury to individuals based on who they are,” while “the anti-retaliation provision seeks to prevent harms to individuals based on what they do.” Therefore, the types of retaliation that could chill the exercise of rights is much broader, and not necessarily limited to the workplace.
Since Officer Blake continues to work for Baltimore County, the jury sitting in federal court in Baltimore awarded him damages based solely on his emotional distress. Kudos to his lawyer, my friend Kathleen Cahill, for helping him obtain justice.