United States: Supreme Court Rules That Unlawful Retaliation Under Title VII May Include Actions That Would Not Necessarily Constitute Discrimination

In today’s unanimous opinion in Burlington Northern Santa Fe Railway Co. v. White (No. 05-259), the Supreme Court held that a plaintiff may pursue a retaliation claim under Title VII of the Civil Rights Act of 1964 if the "employer’s challenged action would have been material to a reasonable employee," and likely would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." The ruling is a significant victory for employees in that the Supreme Court rejected more restrictive standards of proof that had been used by several U.S. Circuit Courts of Appeals.

Sheila White was hired as a track maintenance laborer by Burlington Northern Santa Fe Railroad (BNSF) in June of 1997. She was the only woman in the department, and the only person who was qualified to operate a forklift. For the first three months of her employment, White was assigned to operate a forklift, which is less physically demanding and cleaner than other track work.

On September 16, 1997, White filed an internal complaint alleging that her foreman sexually harassed her and discriminated against her. Ten days later, the foreman was given a ten-day suspension, and White was removed from her forklift duties and assigned to more physically demanding and dirtier track maintenance work.

White filed charges of sex discrimination and retaliation with the U.S. Equal Employment Opportunity Commission (EEOC) on October 10, 1997, and again on December 4, 1997. On December 11, 1997, White was involved in a dispute with a supervisor and was suspended without pay for insubordination. White made a timely request for an investigation within the fifteen day period provided under the applicable collective bargaining agreement for appealing disciplinary actions. Upon the conclusion of the investigation, BNSF reversed the suspension. On January 16, 1998, BNSF reinstated White with full back pay and expunged the suspension from her personnel record.

After exhausting her administrative remedies, White filed a Title VII lawsuit alleging sex discrimination and retaliation. White alleged that the retaliation consisted of (i) her reassignment from forklift duties to more demanding responsibilities, and (ii) her suspension because she had filed EEOC charges.

The jury found for BNSF on White’s sex discrimination claim. However, on White’s retaliation claim the jury awarded her $43,250 in compensatory damages, based on White’s testimony that being without income over the Christmas holidays caused her to seek medical treatment for serious distress about providing for herself and her children.

The Court of Appeals for the Sixth Circuit reversed the ruling on the retaliation claim, holding that the two alleged acts of retaliation were not sufficient to state a claim for retaliation under Title VII. The Sixth Circuit stated that it could not see how White suffered an adverse employment action by being directed to do a job for which she was hired, and that the suspension pending the investigation, and followed by reinstatement, was an interim decision that was not actionable.

Upon rehearing of the case en banc, the Sixth Circuit affirmed the jury’s verdict on the basis that Title VII prohibits adverse actions that materially change the terms of employment, including the two acts against White. The en banc court determined that taking away an employee’s paycheck for over a month is not trivial, and that White’s reassignment was done with retaliatory intent and constituted a demotion to a more arduous, dirtier, and less prestigious job.

Prior to the Supreme Court’s decision, the Circuit Courts of Appeals had used several different standards to determine whether employer conduct rises to the level of retaliation under Title VII. In its decision in this case, the en banc Sixth Circuit stated that a plaintiff alleging a Title VII retaliation claim must prove the existence of (i) an "adverse employment action" or (ii) severe or pervasive retaliatory or other discrimination-based harassment by a supervisor. White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789 (6^th Cir. 2004). The Sixth Circuit defined "adverse employment action" as action causing "a materially adverse change" in the terms of employment. The Sixth Circuit explained that this standard prevents lawsuits from being filed based on trivial workplace dissatisfactions, and that mere inconvenience or alteration of job responsibilities do not satisfy the "materially adverse" standard.

The Ninth Circuit adopted the more protective standard used by the EEOC. Ray v. Henderson, 217 F.3d 1234 (9^th Cir. 2000). Under this standard, employer conduct qualifies as retaliation in violation of Title VII if it is "reasonably likely to deter employees from engaging in protected activity." The Ninth Circuit explained that this standard effectuates the purpose of Title VII because it focuses on the deterrent effects of the employment action, rather than the ultimate effects. In the Ninth Circuit’s view, the severity of the ultimate effects is a factor as to damages, not liability.

The Seventh and District of Columbia Circuits had required the plaintiff to prove that the "employer’s challenged action would have been material to a reasonable employee," and likely would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Washington v. Illinois Department of Revenue, 420 F.3d 658, 662 (7^th Cir. 2005); Rochon v. Gonzales, 438 F.3d 1211, 1217-1218 (D.C. Cir. 2006).

The most restrictive standard had been used by the Fifth Circuit. According to the Fifth Circuit, Title VII only prohibits retaliation in the form of "ultimate employment decisions," not every employer decision that arguably might have some tangential effect upon those ultimate decisions. Mattern v. Eastman Kodak Co., 104 F.3d 702 (5^th Cir. 1997). "Ultimate employment decisions" generally include hiring, granting leave, discharging, promoting, and compensating.

The opinion authored by Justice Breyer specifically adopted the standard that had been used by the Seventh and District of Columbia Circuits.

The opinion contrasted the language of Title VII’s anti-discrimination provision, which prohibits discrimination as to "terms and conditions of employment," with Title VII’s anti-retaliation provision which prohibits "discrimination" but is not limited by the additional phrase "terms and conditions of employment." The opinion reasoned that this difference in language showed Congress’ intent to forbid a broader range of retaliatory acts than are prohibited under the anti-discrimination provision.

The opinion stated that the requirement of "material adversity. . . is important to separate significant from trivial harms," and that the "reasonable employee" standard "avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings." The opinion also stated that the standard was phrased "in general terms because the significance of any given act of retaliation will often depend on the particular circumstances. Context matters."

In addition, the opinion stated that Title VII’s anti-retaliation provision "does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." The opinion 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." (Italics in original.) The court cited as an example the decision in Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10^th Cir. 1996), in which the Tenth Circuit held that actionable retaliation could take the form of an employer’s filing false criminal charges against a former employee.

Justice Breyer concluded by holding that the transfer of White’s forklift responsibilities, and her 37-day suspension without pay, were sufficiently material to likely have dissuaded a reasonable employee, and affirmed the jury verdict in White’s favor.

Justice Alito wrote a separate concurrence stating that the standard set forth in the majority opinion was unworkable, but that he would have affirmed the decision and reasoning of the en banc Sixth Circuit upholding the verdict.

Statistics kept by the EEOC show that retaliation filings under Title VII have doubled in the last fifteen years. Retaliation claims have increased because, as illustrated by the facts of White’s case, it is possible for an employee to lose on the issue of discrimination or harassment, but still to prevail on the issue of retaliation. Employers have argued that a relatively low standard for determining what constitutes actionable retaliation encourages litigation over workplace incidents even where no discrimination or harassment has occurred. The standard announced by the Supreme Court probably will not deter the rising tide of retaliation claims. Certainly, employers located in Circuits which previously had used higher standards for retaliation claims should review their personnel management practices to ensure those practices align with the Supreme Court’s standard.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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