Decision in Burlington Northern & Santa Fe Railway Co. vs. White

The U.S. Supreme Court today issued a significant decision in Burlington Northern & Santa Fe Railway v. White establishing a new standard on what actions constitute retaliation under Title VII.

The Court's opinion written by Justice Breyer and joined in by all the other justices, except Justice Alito who issued a concurring opinion, holds that retaliation under Title VII is not limited to the actions and harms that are "related to employment or occur at the workplace." Rather, it covers any employer action "that would have been materially adverse to a reasonable employee or job applicant."

The Court's rationale for this decision is that the language of Title VII indicates that Congress intended for the anti-retaliation provision of Title VII to have broader scope than the substantive nondiscrimination provision of the statute in order to prevent employer actions that are likely to deter discrimination victims from filing complaints. The Court noted that 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.

The Court opinion discusses the new standard in some detail, stating that Title VII prohibits retaliation that produces an "injury or harm." This requires a showing that a reasonable employee would have found the challenged action "materially adverse, " which means that it "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court distinguished between actions that cause material adversity and "trivial harms," such "those petty slights or minor annoyances that often take place at work and that all employees experience." The opinion makes reference to court decisions holding that "personality conflicts at work that generate antipathy" and "snubbing by supervisors and co-workers" are the types of petty slights that are not actionable as retaliation.

The Court noted that it was adapting an objective "reasonable employee" standard for judging whether the harm to an employee constitued unlawful retaliation. It also noted that it was phrasing the standard in general terms "because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." In giving examples of context, the Court stated:

"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."

Applying the new retaliation standard to the facts of the Burlington Northern case, the Court found that the employer engaged in retaliation by reassigning the employee to different job duties within the same job description and giving her a 37 day suspension without pay, despite the fact the employer had later reinstated her with backpay. The Court based its finding of retaliation regarding the reassignment of job duties on the fact that the employee's new job duties were less desirable than her former duties (they involved more arduous and dirtier work) and, thus, could be viewed as materially adverse to the employee. Even though the employer made the employee whole for her suspension by reinstating her and paying her backpay, the Court determined that the unpaid suspension was still retaliatory because many reasonable employees would find a month without pay a serious and stressful hardship that could deter employees from asserting Title VII rights. The Court further stated that the make whole remedy for violations of Title VII allowed employees to recover compensatory and punitive damages in addition to backpay.

This more liberal standard for establishing retaliation will certainly increase the costs and risks of defending these types of cases (except in the 9th Circuit, which had an even more liberal standard). Also of note, is the near unanamity of the justices in supporting this new standard and the implications for other employment law cases that come before the Court. While Justice Alito did not agree with the new standard, he concurred with the Court's judgment on the grounds that retaliation was established under the adverse employment action test.

Read a copy of the Court's opinion here.