On June 22, 2006, in Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court significantly expanded Title VII’s protection for employees who complain of discrimination. No. 05-259 [2006 WL 1698953]. Employers should note that this decision may lead to a dramatic increase in Title VII retaliation claims.
In addition to prohibiting employment discrimination generally, Title VII protects employees who complain of discrimination from employer-initiated retaliation. To date, some federal courts have required employees making retaliation claims to prove that their employer had made a final or ultimate employment decision, i.e., a termination, a failure to hire or a failure to promote. Other federal courts have applied a different standard, requiring employees only to prove that a "material" retaliatory employment action resulted from a complaint of discrimination. The Supreme Court resolved this split of authority in Burlington, holding that an employee need only demonstrate that a "reasonable" employee would deem an employment action resulting from a claim of discrimination is "materially adverse."
Sheila White, the employee in Burlington, was the lone woman working at Burlington’s Tennessee railroad yard. She complained that Burlington had retaliated against her on two separate occasions for making gender discrimination complaints by first being reassigned to a less-desirable track laborer position and later, for an unrelated complaint, suspending her for 37 days without pay for insubordination, although she was eventually reinstated and made whole.
A jury awarded White damages and Burlington appealed. The Sixth Circuit Court of Appeals affirmed the jury verdict, finding that all White was required to prove was that she suffered a "materially adverse change in the terms and conditions of her employment" as opposed to demonstrating that she suffered an "ultimate employment decision." Burlington appealed to the Supreme Court. Writing for the Court, Justice Breyer found that Title VII’s anti-retaliation provision was meant to be interpreted broadly in order to accomplish the Act’s primary objective of allowing employees to complain of discrimination without fear of reprisal. Toward this end, the Court held that "employment decisions" extend to "materially adverse" employer conduct, or, in other words, employer conduct that would have dissuaded a reasonable employee from making or supporting a charge of discrimination. Thus, even if the action or harm does not affect the employee’s compensation, terms, conditions or privileges of employment, the employer’s retaliatory conduct may now be actionable.
The Court cautioned against treating its broad interpretation of the anti-retaliation provision as immunizing the employee from "those petty slights or minor annoyances that often take place at work and that all employees experience," and noted that whether the conduct was materially adverse will depend on the circumstances. A slight change in an employee’s work schedule might not affect most workers, but, for example, it might prevent a young mother with young children from complaining about discrimination. Likewise, refusing to invite an employee to lunch may merely be a non-actionable petty slight, but excluding that same employee from a weekly professional training lunch might deter that employee from complaining about discrimination.
In the end, the Court wrote, "[c]ontext matters" and, based on its new standard, the Court affirmed the jury’s verdict because Burlington’s conduct was materially adverse to White when viewed from an objective standard. The Court found that a reasonable jury could conclude that a reassignment to a "less desirable" and "more arduous and dirtier" position, although that position had job duties falling under the same job description as her previous position, would dissuade White from complaining of discrimination. Likewise, a reasonable jury could also conclude that a 37-day suspension without pay would deter White from complaining of discrimination.
Justice Alito, in his concurring opinion, agreed with the majority’s conclusion, but took issue with its "materially adverse" standard, fearing it was overly broad and would leave "juries hopelessly at sea." Employers should share Justice Alito’s cause for concern as the Supreme Court’s new standard has expanded the types of conduct exposing them to Title VII liability. And despite the Supreme Court’s best efforts to define "materially adverse" through its examples and its imposition of an "objective" standard, it remains difficult for employers to know the potential ramifications of their actions towards employees. Before taking any action against an employee complaining of discrimination, employers should assess each employee’s particular circumstances and make sure any action taken is legitimate and independently grounded as well as adequately documented. Employers are also advised to review their anti-retaliation policies and review with managers appropriate procedures for processing, responding to, and most importantly, appropriately reacting to employee discrimination claims.
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