PUBLICATIONS

On June 22, 2006, the U.S. Supreme Court issued a decision that will likely make it easier for individuals claiming retaliation under Title VII to take these claims to trial. See Burlington Northern and Santa Fe Ry. Co. v. White. In this case, the Court held that a person complaining of retaliation under Title VII is not required to prove that the allegedly retaliatory conduct was related to his or her employment or workplace. Additionally, the Court held that a retaliation claim can proceed if the complaining person shows that a reasonable employee would have found the challenged action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. The standard adopted by the Court in Burlington Northern is more lenient than that imposed by many federal appeals courts.

 

Title VII's retaliation provision forbids employers from discriminating against individuals who have opposed practices forbidden by Title VII or who participate in a Title VII investigation or other proceeding. Federal appeals courts have disagreed on whether the allegedly retaliatory conduct must be related to the complaining person's employment or workplace and regarding the degree of harm the person claiming retaliation must show to be able to proceed with the claim.

 

Some courts have required a showing that the allegedly retaliatory conduct had an adverse effect on the employee's "terms, conditions or benefits" of employment or that the conduct was an "ultimate employment decision," such as hiring, firing, compensation, etc. More lenient courts, however, have permitted retaliation claims to proceed if the challenged action would have been material to a reasonable employee or if the complaining person showed adverse treatment based on a retaliatory motive, which was reasonably likely to deter the charging party or others from engaging in protected activity. The Court's decision in Burlington Northern resolved this split among the appeals courts.

 

The Court held that Title VII's prohibition on discrimination is expressly limited to actions that affect employment or alter the conditions of the workplace; however, the antiretaliation provision is not so limited. The Court noted that the prohibition on discrimination seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.

 

According to the Court, Congress could achieve the objectives of the antidiscrimination provision by prohibiting only employment-related discrimination; however, it could not achieve the objectives of the antiretaliation provision by limiting its prohibitions to employment-related harm. The Court noted, "[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."

 

In addressing the extent of harm the person complaining of retaliation must show, the Court held that an individual must show that a reasonable employee would have found the challenged action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. While this standard is more lenient than those courts that require an adverse impact on the employee's terms or conditions of employment or an "ultimate employment decision," the Court emphasized that challenged action must be materially adverse, not trivial. "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience."

 

In this case, the Court held that the facts supported the jury's verdict on the employee's retaliation claim. Here, the employee claimed she was subjected to illegal retaliation when she was reassigned more arduous duties after complaining of sexual harassment and when, after complaining of this reassignment, she was later disciplined for insubordination and suspended without pay for 37 days. The Court rejected the employer's argument that the employee's suspension could not be retaliation because she was reinstated with backpay. The Court noted that even though she eventually received backpay, the employee and her family had to live for 37 days without income, not knowing whether or when she could return to work. "A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former."

 

 

While the Court's decision will likely enable more retaliation claims to get to trial instead of being resolved by the judge (without a jury) at an earlier stage, ultimately the decision reiterates the importance of taking proactive steps to ensure that employees who complain of discrimination are not subjected to retaliation. An employer considering taking disciplinary action against an employee shortly after that employee has complained of discrimination should evaluate the proposed discipline carefully to ensure that it is consistent with the employer's policies, past practices and disciplinary actions directed toward employees in comparable situations.

 

If you have any questions regarding the Supreme Court's decision, or labor or employment related issues in general, please contact the Ford & Harrison attorney with whom you usually work.