For the First Time the Supreme Court Defines Retaliatory Conduct for Purposes of a Title VII 'Retaliation Claim'
The Employment and Labor Law Alert
June 27, 2006
It is a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. (Title VII), for an employer to retaliate against an employee who has made a claim, or who has supported another’s claim, of unlawful employment discrimination. The federal Circuit Courts have been divided on the type of employer actions that constitute actionable retaliation under Title VII. In Burlington Northern and Santa Fe Railway Company v. White, __ U.S. __, 2006 WL 1698953 (June 22, 2006), the United States Supreme Court, in an opinion by Justice Breyer, has now given a broad interpretation to Title VII’s retaliation provision that will significantly enhance the ability of employees to assert that their employers have retaliated against them for exercising their Title VII rights. Rejecting the approach of some lower courts that only certain types of employer actions can form the basis of a retaliation claim, the Supreme Court interpreted Title VII to authorize a retaliation claim whenever the employer, in reaction to a complaint of discrimination made by an employee, takes any action that is “materially adverse” to the employee. Whether the harm suffered by the employee meets the test of “material adversity” depends on whether that harm would likely have dissuaded “a reasonable employee” from making or supporting a claim of discrimination, a determination that depends on the facts and circumstances of each case.
White was the only woman working at the Maintenance of Way department at the Tennessee Yard of Burlington Northern & Santa Fe Railway. Burlington hired White as a “track laborer” but soon after she began working, a co-worker who had previously operated the forklift, assumed other responsibilities, and White was assigned to the forklift, which became her primary responsibility.
Subsequently, White complained to Burlington officials that her immediate supervisor had repeatedly told her that women should not be working in the Maintenance of Way department and had made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington imposed a 10-day suspension on the supervisor and ordered him to attend a sexual-harassment training session. Shortly thereafter, however, White was relieved of her forklift assignment and assigned to perform only standard track laborer tasks. She was told the reassignment reflected co-worker’s complaints that, in fairness, a ” more senior man” should have the “less arduous and cleaner job” of forklift operator.
White then filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about harassment. Two months later, White filed a second retaliation charge, alleging she had been placed her under surveillance. Subsequently, White was suspended for 37 days for alleged insubordination for arguing with her new supervisor. As a result of internal grievance procedures, the finding of insubordination was reversed and White was reinstated with back pay. White then filed an additional retaliation charge with the EEOC based on the suspension.
White filed a Title VII action against Burlington in federal court, claiming, inter alia, that Burlington’s actions in (1) changing her job responsibilities and (2) suspending her for 37 days amounted to unlawful retaliation in violation of 42 U.S.C. § 2000e-3(a). The jury found in White’s favor on both claims and awarded her $43,500 in compensatory damages.
The Supreme Court’s Decision
The Court first noted that Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), forbids employer actions that “discriminate against” an employee who has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” But the Court also noted a split among the Circuits “about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation.” Some Circuits had held that the retaliatory conduct, to be actionable, must result in an adverse effect on the ‘terms, conditions, or benefits’ of employment. Other Circuits had taken a more restrictive approach, limiting actionable retaliatory conduct to acts of acts hiring, granting leave, discharging, promoting, and compensating. Yet other Circuits had taken a less restrict approach, holding retaliatory conduct actionable if it likely would have dissuaded a reasonable employee from complaining of discrimination in the first place. Finally, the Court noted that it had granted certiorari to “to decide whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace” and to “characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope.”
With regard to the scope of the conduct that can provide the basis for a retaliation claim, the Court cited the differences in language between the section of Title VII making discrimination in employment unlawful, 42 U.S.C. § 2000e-2(a), and the section making retaliation unlawful, .42. U.S.C. § 2000e-3(a). Under the former provision, employers cannot refuse to “hire”, cannot “discharge,” and cannot otherwise discriminate with regard to “compensation,”‘, “terms, conditions or privileges of employment,” “employment opportunities,” or “status as an employee” because of race, sex, color or national origin. In contrast, the retaliation provision simply makes it an unlawful employment practice for an employer “to discriminate against” an employee who makes a charge of discrimination or who assists in the investigation of such a charge. Because the “discriminate against” language of the retaliation provision is not expressly limited to the types of unlawful conduct enumerated in § 2000e-2(a), the Court concluded that Congress did not intend to limit retaliatory conduct to the specific conduct proscribed by § 2000e-2(a). The Court further reasoned that because an employer can effectively retaliate against an employee “by taking actions not directly related to his employment or by causing him harm outside the workplace,” to limit actionable retaliation to employment-related actions “would not deter the many forms that effective retaliation can take” and “would fail to fully achieve the anti-retaliation provision’s goal of “[m]aintaining unfettered access to statutory remedial mechanisms.” The Court also noted that, while the EEOC had not always given a consistent interpretation of the retaliation provision, on balance those interpretations would support a broad reading of the provision.
Accordingly, the Court held that “Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”
The Court next addressed the issue of “the level of seriousness” to which the harm caused by the retaliatory act must rise to become actionable retaliation. The Court adopted the view of those Circuits which had held that “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse”, meaning that a “reasonable worker” might well have been dissuaded from making or supporting a charge of discrimination had she been aware that the retaliatory act at issue would have been the consequence of the employee’s exercise of her rights under Title VII. The Court explained that it was adopting the concept of “material adversity” to differentiate serious from trivial harms. In this regard, the Court noted that Title VII does not set forth “a general civility code for the American workplace,” and thus 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.” The Court reasoned that as a general rule “retaliation” which takes the form merely of “petty slights, minor annoyances, and simple lack of good manners” will not deter employees from exercising their rights under Title VII and will not provide the basis for an actionable claim of retaliation.
The Court also emphasized that whether the harm caused by the retaliatory action would likely deter an employee from exercising his rights under Title VII must be analyzed from the viewpoint of “a reasonable employee,” that is, the standard for judging harm must be objective. As the Court explained: “An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Moreover, the standard is a general one that depends on the facts and circumstances of each rather than a resort to a specific list of prohibited acts. By way of example, the Court noted: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children…. A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”
With regard to the case before it, the Court ruled that the jury was entitled to find, as it did, that the two allegedly retaliatory harms suffered by White, the reassignment from forklift duty and the 37-day suspension without pay, met the level of harm prohibited by Title VII. The Court noted that although job reassignments are not automatically actionable, “here, the jury had before it considerable evidence that the track labor duties were by all accounts more arduous and dirtier” than the forklift operator position, required more qualifications, “which is an indication of prestige”; and that “the forklift operator position was objectively considered a better job and the male employees resented White for occupying it.” Based on this record, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee.” With regard to White’s suspension, the Court cited to the evidence that “White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having ‘no income, no money’ in fact caused…. A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay…. Thus, the jury’s conclusion that the 37-day suspension without pay was materially adverse was a reasonable one”
The Court’s decision sets forth a broad interpretation of Title VII’s retaliatory provision. Any type of action taken by an employer, in reaction to an employee’s complaint of discrimination, even actions not directly related to the terms and conditions of employment, can form the basis of a retaliation claim if it meets the Court’s requirement that the action be “materially adverse” to the employee. And “material adversity” must be considered under the facts and circumstances of each case. Given that there is no bright line test to determine what actions taken by the employer will and will not constitute actionable retaliation, it is more important than ever for employers to make sure that their supervisory and other personnel are sufficiently trained in the concept of “retaliation” and how to avoid exposing their employers to retaliation claims.