Supreme Court Broadens Protections Against Retaliation
On June 22, 2006, the U.S. Supreme Court issued an important decision that substantially enhances the legal protection for employees who complain about discrimination or harassment in the workplace. Burlington Northern & Santa Fe Railroad v. White, No. 05-529 (June 22, 2006). The unanimous decision resolved a disagreement among lower federal courts and adopted an expansive definition of “retaliation” under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(a). Under this decision, any “materially adverse” employment action that “might have dissuaded a reasonable worker” from complaining about discrimination can constitute actionable retaliation under Title VII.
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. It is settled law that a plaintiff complaining of discrimination must establish that discriminatory conduct rose to the level of an “adverse personnel action” – that it affected a term or condition of employment. A separate section of the statute – its anti-retaliation provision – makes it illegal for an employer to “discriminate against” an employee because that individual has opposed any unlawful employment practice or has filed a charge of discrimination or otherwise participated in a proceeding under Title VII. However, the statute does not define retaliation, leading to confusion among federal Circuit Courts of Appeal as to the appropriate standard. Some Circuits insisted that a plaintiff demonstrate a direct relationship between the allegedly retaliatory action and “terms, conditions or benefits of employment.” Other Circuits adopted an even more restrictive approach, limiting actionable retaliatory conduct to decisions such as “hiring, granting leave, discharge, promoting or compensating.” On the other hand, other Circuits merely required a plaintiff to prove adverse treatment that would likely have deterred an individual from making or supporting a charge of discrimination, regardless of whether the treatment affected a term or condition of employment. The Supreme Court agreed to hear the Burlington Northern case to resolve this disagreement.
The plaintiff, Sheila White, was the only female working in the maintenance department of the Burlington Northern’s Tennessee Yard where she was primarily responsible for operating a forklift. In September 1997, White complained to company officials that her immediate supervisor repeatedly insulted and harassed her in front of her male colleagues. Her supervisor was disciplined, but White was simultaneously reassigned to standard track laborer tasks that were more physically demanding and otherwise considered to be less desirable. White filed a charge with the Equal Employment Opportunity Commission (EEOC), claiming that her reassignment amounted to unlawful gender discrimination as well as retaliation for reporting her supervisor’s inappropriate actions. Later, following a minor disagreement with her new supervisor, White was indefinitely suspended but reinstated 37 days later with backpay. Eventually, White filed a lawsuit alleging that her change in job responsibilities and suspension without pay constituted unlawful retaliation under Title VII. A jury found in her favor, awarding approximately $45,000 in damages, and the U.S. Court of Appeals for the Sixth Circuit affirmed the judgment.
The Supreme Court, in an opinion by Justice Stephen Breyer, agreed with the result reached by the Court of Appeals and adopted a new standard to evaluate Title VII retaliation claims. The Court rejected the position adopted by some lower courts, and urged by employers, that actionable retaliation occurs only when the employee is subjected to conduct that adversely affects a term or condition of employment. Rather, according to the new standard, any “materially adverse employment action that might have dissuaded a reasonable worker” from coming forth with a discrimination charge will suffice to form the basis for a retaliation claim. To support this result, Justice Breyer cited the differences in language between Title VII’s prohibition of discrimination and its anti-retaliation provision. Whereas the statute outlaws discrimination with respect to “compensation, terms, conditions, or privileges of employment,” the anti-retaliation section lacks this restrictive reference to terms and conditions of employment, and broadly prohibits “discrimination” against an employee who has opposed unlawful practices or engaged in other conduct protected by Title VII. The Court therefore concluded that Congress intended the anti-retaliation provision to provide broader protection than the substantive prohibition of discrimination, in order to guarantee employees “unfettered access” to the pursuit of Title VII’s basic mandate.
The new standard emphasizes that the challenged employment action must be “material,” ostensibly to weed out claims of retaliation based on “petty slights or minor annoyances” that inevitably occur in any work environment. Additionally, the Court observed that in determining whether an employee alleging retaliation has been subjected to a “material adverse action,” the focus is to be on the impact of the challenged conduct on a hypothetical “reasonable” employee, rather than on the individual plaintiff’s subjective response to the complained of conduct. Notwithstanding these limitations, however, the new standard is unquestionably an exceedingly broad one. The Court specifically noted, for example, that an employer may violate Title VII’s prohibition on retaliation by taking actions entirely outside the workplace, such as by filing false criminal charges against an employee.
Having adopted this new standard, the Court had little difficulty in determining that plaintiff White had proven actionable retaliation. There was considerable evidence that White’s new track labor duties were far dirtier and less prestigious than her previous position, which was more than sufficient to establish a “materially adverse personnel action.”
Justice Alito issued a separate concurring opinion in which he disagreed with the Court’s new standard, although joining in the end result. Justice Alito preferred to read Title VII’s discrimination and retaliation together as both requiring that the complained of adverse action relate specifically to the terms and conditions of employment. Nonetheless, he found that the reassignment and suspension of White qualified as “adverse” and “tangible” employment actions that satisfied his test for retaliation.
The Burlington Northern case will undeniably have an enormous impact on the conduct of employment discrimination litigation. Retaliation claims already make up a significant and rapidly growing part of the dockets of the federal courts and account for more than one-quarter of all charges before the EEOC. This decision will make it significantly more difficult for employers to have these claims dismissed before trial. Clearly, employers will have to be even more vigilant in insuring that employees who have previously complained of discrimination do not suffer any form of adverse consequences as a result.