Kissel & Pesce LLP— Jeffrey Hirsch
Date: June 26, 2006
Re: US Supreme Court Decision on Employment Practices Retaliation Standard: Burlington Northern & Santa Fe Railway Co. v. White

On June 22, 2006, the United States Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. White, 2006 WL 1698953 (2006), a Title VII retaliation case.  In its unanimous ruling, the Supreme Court broadened the scope of what could be considered “employer action” in retaliation claims.  The employer action does not have to be related to the actual employment, nor does it have to occur at the workplace.  Rather, any employer action that is materially adverse to an employee who has complained of discrimination, and that would dissuade a reasonable worker from making or supporting a charge of discrimination, can be considered actionable retaliation.  The decision is likely to trigger an increase in EPL claims and lawsuits, since it allows employees to establish a retaliation claim more easily.

Burlington arose out of actions that supervisors at Burlington Northern & Santa Fe Railway Company took against Sheila White, the only woman working in the Maintenance of Way department at Burlington’s Tennessee Yard.  Burlington, 2006 WL 1698953 at *3.  When White complained to Burlington officials that her supervisor was discriminating against her based on her gender, the supervisor was suspended for 10 days and ordered to attend a sexual harassment training session.  Id. 

After the incident,however, White was reassigned to a less desirable laborer position, although one with the same pay and benefits.  Id. at *4.  A few weeks later, White was accused of insubordination toward a supervisor and suspended without pay.  Id.  More than a month later, the company found White had not been insubordinate and reinstated her back to her position and awarded her backpay.  Id.

White filed a claim (and lawsuit) against Burlington, claiming that her reassignment and suspension amounted to unlawful retaliation in violation of Title VII.  Id.  Title VII’s anti-retaliation provision, section 704(a), forbids employer actions that “discriminate against” an employee because he opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII hearing, proceeding or investigation.  Id. at *5 (quoting 42 U.S.C. § 2000e-3(a)).  The term “discriminate against” refers to “distinctions or differences in treatment that injure protected individuals,” However, the federal Circuit courts have interpreted the anti-retaliation provision differently and there are, generally, three different groups of interpretations of what employer actions constitute “discrimination against” an employee sufficient to establish a retaliation claim.  Id. at *5

The Supreme Court rejected the standard that limited retaliation actions to so-called “ultimate employment decisions,” i.e., hiring, granting leave, discharging, promoting, and compensating.  (This standard had been applied in the Fifth and Eighth Circuits.)  Id. at *5.  The Court also rejected the “adverse employment action” standard, i.e., discrimination action with respect to compensation, terms, conditions, or privilege of employment.  (This standard had been applied by the Second, Third, Fourth, and Sixth Circuits.)  Id.

Applying the Broad Standard. The Seventh and the District of Columbia Circuits have said that “the plaintiff must show that the employer’s challenged action would have been material to a reasonable employee, which . . . means that it would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Id.  Similarly, the Ninth Circuit has said that “the plaintiff must simply establish adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”  Id.

In Burlington, the Supreme Court applied this broader standard.  The Court concluded that “the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.”  Id. at *3.  It also concluded that “the provision covers those . . . employer actions that would have been materially adverse to a reasonable employee or job applicant.”  Id.  The Court explained that “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”  Id.

The Supreme Court stated that “[t]he anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”  Id. at *10.  To separate significant injuries and harms from trivial ones, the Court imposed an objective standard “[b]y focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position.”  Id. at *11.  The Court said it “believe[s] this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”  Id.  For example, changing an employee’s work schedule might not constitute retaliation for some but would matter enormously to a young mother with school age children.  Id.  Similarly, a supervisor’s refusal to invite an employee to lunch is normally trivial and not retaliation, but failure to invite an employee to a series of training lunches that would contribute significantly to the employee’s professional advancement could have the effect of deterring employee complaints and would be an actionable retaliation.  Id. 

Applying the standard to White’s claim, the Court concluded that “there was sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim.”  Id.  Although the Court assured that reassignment of job duties is not automatically actionable, judging from the perspective of a reasonable person in White’s position, the Court said that the more “arduous and dirtier job” she was reassigned to would have been materially adverse to a reasonable employee.  Id. at *12.  Similarly, with regard to the 37-day suspension without pay, the Court noted that “[m]any reasonable employees would find a month without a paycheck to be a serious hardship.”  Id. at *13.

Commentary. While it is still too early to predict, it seem that after Burlington, it will be more difficult to counsel an employer “in the moment” as to what actions are permissible in connection with an employee who may have lodged a complaint concerning employment.  This presents a greater challenge to HR personnel, because whether something is retaliation is now likely to be judged from “the eyes of the beholder” - the person claiming retaliation. We also predict that summary judgment in retaliation claims will be even harder to achieve.  It is interesting to note that in Burlington, the jury awarded compensatory damages of $43,500 and medical expenses of just over $3,200.  The issue of punitive damages was not decided. 

If you would like a copy of the decision, or would like to discuss it in further detail, please contact us.

—Jeffrey H. Hirsch, (Member) born New York, N.Y., July 24, 1962;