Alert: United States Supreme Court Broadens the Standard for Anti-Retaliation Claims by Employees

June 26, 2006

In a watershed decision on June 22, 2006, the United States Supreme Court broadened the types of employer actions that may be actionable as retaliation for violations of Title VII.  The Court held that retaliation may occur even without direct, immediate economic harm.  Adopting the Ninth Circuit view and rejecting the view of some other circuits, the Court held that retaliatory action need only be severe enough to deter employee complaints.

In Burlington Northern Santa Fe Railway Co. V. White, 06 CDOS 5312, No. 05-259, Plaintiff Sheila White was a "track laborer" at Burlington Northern Santa Fe Railway's ("Burlington") maintenance department train yard performing a variety of tasks, but primarily operating the forklift, which was considered a less arduous and cleaner job among track laborers. 

After White complained to Burlington that her immediate supervisor had made insulting and inappropriate remarks to her and other colleagues about women working in the maintenance department, Burlington investigated and disciplined White's supervisor.  White was then removed from forklift duty and reassigned to perform only standard track laborer tasks, although she received the same pay and benefits. 

After White filed a complaint with the Equal Employment Opportunity Commission (EEOC) regarding the demotion, White was accused of insubordination and suspended without pay.  The company later determined that she had not been insubordinate and reinstated White to her position with backpay for 37 days. 

White brought suit against Burlington, claiming unlawful retaliation for (1) changing her responsibilities; and (2) suspending her without pay.  A jury awarded White $43,500 in damages, plus medical expenses and attorney's fees.  A Sixth Circuit en banc panel voted to affirm the District Court's judgment, but differed as to the proper standard to apply to Title VII retaliation claims.

The Supreme Court held that both Burlington's reassignment of duties and the suspension independently established an actionable retaliation claim.  Resolving a split among the circuits, the Court held that any action that materially injures or harms an employee who has complained of discrimination and would dissuade a reasonable worker from making or supporting a charge of discrimination can constitute actionable retaliation. 

The Court reasoned that "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace."  As such, the Court found that "the scope of the anti-retaliation provision extends beyond the workplace-related or employment-related retaliatory acts and harms." 

The Court, emphasized, however, that what exactly constitutes retaliatory conduct will depend on the context and circumstances of the particular case, focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position.  This contextual approach will make summary judgment more difficult to obtain in retaliation lawsuits. 

The Court rejected Burlington's contention that there was no retaliation because White's duties before and after the reassignment fell within the same job description and provided the same compensation.  Because the evidence showed that White was reassigned to duties which were more arduous, dirtier and required fewer qualifications, the Court found that a reasonable jury could conclude that the reassignment would have been materially adverse to a reasonable employee. 

The Court also rejected Burlington's argument that the suspension without pay was insignificant because White was ultimately reinstated with backpay.  The Court explained that "[m]any reasonable employees would find a month without a paycheck to be a serious hardship," and that a "reasonable employee facing a choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former." 

Therefore, to prove retaliation under Title VII, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse," which in Burlington meant it would have "dissuaded a reasonable worker from making or supporting a charge of discrimination."

This decision should affect decisions about employees who complain about their supervisors.  Under some circumstances, employers in the past have found that the best solution to supervisor/subordinate conflicts has been transferring the complaining employee.  The Burlington case, however, suggests that even a transfer or a change in duties (without immediate economic harm) may support a retaliation cause.