Supreme Court Loosens Standard in Retaliation Lawsuits
July 2006
On June 22, the U.S. Supreme Court issued
a decision expanding the protection to employees who allege they have suffered
retaliation after making a complaint of discrimination or harassment under Title
VII of the Civil Rights Act of 1964.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
Employees who make retaliation claims under Title VII no longer must prove
they suffered an "ultimate employment decision" or "materially adverse change
in the terms and conditions of employment," such as a discharge, demotion, or
loss of pay, in order to state a claim. Rather, the Supreme Court adopted a
broader standard, holding Title VII prohibits more subtle forms of retaliation,
which can even include, depending on the factual circumstances, a change in
schedule or even the failure to invite an employee to lunch.
According to the Court, the standard is whether a "reasonable employee would
have found the challenged action materially adverse," which, the Court explained,
means whether the employer's action "might have dissuaded a reasonable worker
from making or supporting a charge or discrimination." The Court also ruled
Title VII's antiretaliation provision is not limited to actions affecting employment
or to those occurring at work, and can extend to actions causing harm outside the workplace. The case has been
hailed as a victory by employees' rights groups nationwide.
The Facts of the Case
In Burlington N. & Santa Fe Ry. Co. v. White,
No. 05-259 (June 22, 2006), the plaintiff was employed as a track laborer and
was the only female in her department. In this position, she was responsible
for removing and replacing track components, transporting track material, cutting
brush, and clearing litter and spillage from the right of way. Shortly after
her hire, a forklift operator position became available, and the plaintiff was
reassigned to that position.
Subsequently, the plaintiff complained that her supervisor sexually harassed
her. The company investigated the complaint and, following the investigation,
suspended the supervisor and ordered him to attend training sessions regarding
sexual harassment. Shortly thereafter, a company official met with the plaintiff
and advised her that during the investigation, the company had received several
complaints from other employees about her working in a forklift position. The
complaints did not relate to her performance, but the fact that the forklift
was a less arduous and "cleaner" job than other track laborer positions, and
employees believed a "more senior man" should have the position, not a junior
level employee like the plaintiff.
As a result of the complaints, the company removed her from the forklift
and assigned her to a standard track laborer position. Her pay and benefits,
however, remained the same. The plaintiff was eventually suspended for alleged
insubordination, but was reinstated with full back pay after she filed a grievance.
The plaintiff filed a lawsuit alleging the change in her job duties and work
suspension without pay for insubordination had constituted unlawful retaliation
(even though she was reinstated 37 days after her suspension with full back
pay). A jury awarded her $43,500 in compensatory damages. When the employer
appealed, the en banc U.S. Court of Appeals for the Sixth Circuit upheld the
jury verdict but differed as to the appropriate legal standard to apply in determining
whether retaliation had occurred, an issue that also had divided the various
appeals courts.
The Appeal to the Supreme Court
The U.S. Supreme Court granted certiorari to resolve the differences in the
circuit courts of appeal regarding the proper standard for a retaliation claim.
On appeal, the employer argued that to establish a retaliation claim, a link
must exist between the challenged retaliatory conduct and the terms and conditions
of employment. The employer noted that Title VII's substantive antidiscrimination
provision protects individuals only from employment-related discrimination and
urged the Court to read the antidiscrimination and retaliation provisions to
mean the same thing.
Rejecting the employer's argument, the Supreme Court noted that Title VII's
antidiscrimination provision and retaliation provision differ significantly.
In reaching its decision, the Court closely analyzed the express statutory language
prohibiting discriminatory and retaliatory conduct. The Court noted that while
the antidiscrimination provision specifically prohibits actions "with respect
to compensation, terms, conditions, or privileges of employment," the antiretaliation
provision does not contain such an express limitation. Rather, the antiretaliation
provision merely prohibits "discrimination" against those who oppose a practice
forbidden by Title VII or participate in a Title VII proceeding.
The Court held that this language distinction evinced Congress's purpose
of prohibiting employers from "interfering with an employee's efforts to secure
or advance enforcement of the Act's basic guarantees." The Court concluded that
a broad reading of the antiretaliation provision is necessary since 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 Supreme Court also found that the two provisions serve different purposes
and thus should be interpreted differently. The antidiscrimination provision
seeks a workplace where individuals are not discriminated against because of
their race, ethnicity, gender, or religion. The antiretaliation provision seeks
to prevent employers from interfering with an employee's efforts to secure Title
VII's guarantees. The Court noted that this objective could not be secured by
focusing only on workplace-related conduct because an employer could retaliate
against employees by taking actions not related to employment or by causing
harm outside of the workplace. Thus, the Court concluded that the antiretaliation
provision "extends beyond workplace-related or employment-related harm."
What Constitutes Unlawful Retaliation?
The Court then addressed the standard for determining whether an alleged
harm constituted unlawful retaliation. The Court held that a plaintiff must
show that a "reasonable employee would have found the challenged action materially
adverse." The conduct must dissuade "a reasonable worker from making or supporting
a charge of discrimination." The Court emphasized that this standard is objective,
so an individual employee's "unusual subjective feelings" are irrelevant. Reiterating
that Title VII is not a general workplace civility code, the Court stated that
a plaintiff must demonstrate that the alleged harm is significant. Whether an
action is materially adverse will depend on the circumstances of a particular
case and should be judged from the perspective of a reasonable person in plaintiff's
position. Simply put, "context matters."
To illustrate the application of these principles, the Court gave two examples,
one involving a schedule change, and the other a refusal to invite an employee
to lunch, an issue discussed heavily during the oral argument. A schedule change
might not matter to most employees, the Court explained, but it "may matter
enormously to a young mother with school-age children." Likewise, a supervisor's
refusal to invite an employee to lunch is "normally trivial, a nonactionable
petty slight." However, 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. Thus, depending on the circumstances,
a reasonable employee might consider these actions materially adverse.
Applying this standard to the specific facts before the Court—whether a reassignment
of duties within the same job description and/or a 37-day unpaid suspension
which was followed by reinstatement and full back pay, constituted actionable
retaliatory conduct—the Court held that each action could be the basis for a
retaliation claim. As to the reassignment of job duties, the Court stated that
while reassignment is not automatically actionable, in the circumstances of
this case, there was evidence that the track labor duties were more arduous
and dirtier, and that the forklift operator position was a more prestigious
job, and thus, reassignment would have been materially adverse to a reasonable
employee. As to the suspension, the Court held that it was actionable since
a "suspension without pay could well act as a deterrent, even if the suspended
employee eventually received back pay." The Court noted, "[m]any reasonable
employees would find a month without a paycheck to be a serious hardship." In
fact, the Court acknowledged White's testimony that without income during the
suspension it was the "… worst Christmas [she] had out of [her] life" and that
she became depressed, which resulted in her obtaining medical treatment for
emotional distress.
In reaching this conclusion, the Court reiterated two limitations on its
holding. First, the Court advised that the alleged retaliatory conduct must
be material and not trivial. The Court, citing to Equal Employment Opportunities
Commission (EEOC) guidance, stated that "petty slights, minor annoyances, and
simple lack of good manners" are insufficient. Second, the Court explained that
an objective "reasonable person" standard is applicable. As stated by the Court,
"context matters," and the "significance of any act of retaliation will often
depend on particular circumstances."
Conclusion
According to the EEOC, approximately 26 percent of all charges filed in 2005
involved retaliation claims. This decision likely will open the door to an even
greater number of retaliation lawsuits. To defend against potential retaliation
claims, employers should train their supervisors regarding retaliation and the
Court's broad standards. Employers also should review their policies to ensure
that they prohibit not only discrimination and harassment, but also retaliation.
Before taking any potentially adverse action against employees who may have
complained about discrimination, supervisors should engage their human resources
experts and counsel regarding that decision.
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