U.S. Supreme Court Rules In Retaliation Case – July 6, 2006

The anti-retaliation provisions of Title VII have always prohibited employers from retaliating against an employee for opposing a discriminatory practice in the workplace. However, in the recent United States Supreme Court case, Burlington Northern and Santa Fe Railway Co. v. White, the definition of retaliation was broadened to potentially include acts that occur outside the workplace and are unrelated to the employment. Although an act must still be “materially adverse” to be retaliatory and thus prohibited, the Supreme Court also adopted an new, less stringent standard of adversity. An act is considered to be materially adverse whenever it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Based on this change, employers could be liable for retaliation even without reducing an employee’s pay, benefits or privileges of employment.

The Burlington Northern case is based on a sexual harassment complaint made by a former employee, Sheila White. White was the only female employee in the Tennessee maintenance yard. She complained of sexual harassment, and the company suspended the offending harasser. Burlington also reassigned White from forklift operator to track laborer, a position that did not require new or different job duties. They company claimed this reassignment was in response to complaints from other employees who thought the sought-after forklift duties should be given to a more senior employee.

After her reassignment, White filed a charge of sex discrimination with the Equal Employment Opportunity Commission. A few days later, White and her supervisor had a disagreement and White was accused of insubordination and was suspended without pay. Thirty-seven days later, Burlington’s internal grievance board reinstated White and awarded her backpay. White filed a retaliation claim under Title VII alleging her reassignment from forklift operator to track laborer and her suspension were both retaliatory.

White won a jury verdict of $43,500. The company appealed and the 6th Circuit ultimately found in White’s favor on the retaliation claims. The Supreme Court affirmed the verdict in White’s favor in adopting the new standard to decide claims of retaliation.

This new standard represents a change in the 8th Circuit, which includes Missouri. Previously, a plaintiff claiming retaliation under Title VII had to demonstrate that the retaliatory conduct involved an “ultimate employment decision.” Only actions such as hire, granting leave, discharge and promotion or demotion could support a claim of retaliation. The Supreme Court’s decision in Burlington reduces the standard for the types of conduct necessary for a claim for retaliation, although the court did note that mere reassignment to less desirable job duties is not automatically retaliation.

As always, employers must be careful when imposing discipline on an employee who have engaged in protected activity, even if company policies allow for such discipline.