SUPREME COURT EXPANDS SCOPE OF TITLE VII RETALIATION CLAIMS

In a just-released decision of major interest to employers, the United States Supreme Court has held that the scope of Title VII’s anti-retaliation provisions extends beyond actions and harms that occur in the workplace.  The Court further held that the anti-retaliation provisions apply not only to “ultimate decisions” such as demotion and discharge but also to other employer actions that are materially adverse to a reasonable employee.  Burlington Northern & Santa Fe Railway Co. v White (U.S. Supreme Court, June 22, 2006)

Facts of the Case 
Sheila White, an experienced forklift operator, was hired as a track laborer by Burlington Northern at its Memphis rail yard. Shortly after she began work, the company assigned Ms. White to an open forklift position.  Ms. White was the only female in the department.  Ms. White’s supervisor told her no woman should be working in his department and made other insulting and inappropriate remarks to her in front of her male colleagues. When Ms. White complained, the supervisor was suspended and ordered to attend sexual harassment training.

On the same day the supervisor was disciplined, Ms. White was relieved of her forklift duties and returned to the less desirable track laborer position. Ms. White then filed an EEOC charge alleging sex discrimination and retaliation. Two months later she filed another EEOC charge, claiming that management had her under surveillance. Within days of Ms. White's filing of the second discrimination charge, the company suspended her without pay for alleged insubordination.  Ms. White challenged the suspension through the internal grievance procedure and was ultimately reinstated and awarded 37 days of back pay. Ms. White then filed her third discrimination charge.

Ms. White filed suit in federal district court in Memphis, alleging that Burlington Northern's actions in changing her job responsibilities and suspending her amounted to unlawful retaliation.  A jury found in Ms. White’s  favor and awarded her compensatory damages of $43,500.  Burlington Northern appealed to the Sixth Circuit Court of Appeals which affirmed the judgment. The Supreme Court agreed to hear the case to resolve conflicting lower court decisions about the scope of Title VII's anti-retaliation provisions.

The Supreme Court’s Decision
The Supreme Court rejected Burlington Northern’s argument that Title VII’s anti-retaliation provisions should be limited to actions that affect the employee's terms and conditions of employment.  The Court said that because an employer can effectively retaliate against an employee by taking action not directly related to the workplace, the purpose of the anti-retaliation law would be frustrated by focusing only on employment-related actions. For example, an employer might decide to retaliate against an employee who complained about discrimination by filing false criminal charges against him or her.

Burlington Northern claimed that its reassignment of Ms. White to the track laborer position could not be retaliatory because her former and present duties fell within the same job description.  The Supreme Court disagreed, noting that track laborer duties were more arduous and dirtier than the forklift duties and the forklift position was viewed as more prestigious.

The Court did say that reassignment of job duties is not automatically retaliatory, and that for reassignment to be actionable, it must have been materially adverse from the perspective of a reasonable person in the plaintiff's position.  A plaintiff must show that the challenged action would dissuade a reasonable employee from filing or supporting a discrimination charge. The Court reiterated earlier rulings that trivial harms, petty slights, or minor annoyances that often occur in the workplace do not amount to material adversity and are not actionable.

Burlington Northern also claimed that its 37-day suspension of Ms. White was not sufficiently adverse since the company had reinstated Ms. White with back pay.  The Court disagreed, noting that suspension without pay could deter an employee from complaining about discrimination even if the employee was eventually reinstated.  According to the Court, a reasonable employee facing the choice between filing a complaint and retaining her paycheck might well choose the latter.

Commentary
Retaliation claims are now the most commonly filed employment discrimination cases, and employers must consider the possibility of such a claim when taking adverse actions against employees.  The Burlington Northern decision expands the potential scope of retaliation claims to actions that a jury might regard as “materially adverse,” even if the employee suffers no monetary loss.  The decision underscores the need to address inappropriate conduct promptly.  When an employee's behavior warrants discipline, take appropriate action immediately. Do not wait until the employee has asserted a discrimination complaint.

If you have questions about retaliation or other employment discrimination issues, please contact a member of our Labor and Employment practice group.