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.
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."
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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