Employment Discrimination

EMPLOYMENT DISCRIMINATION

A NEW STANDARD FOR RETALIATION CLAIMS UNDER TITLE VII

On June 22, 2006, the United States Supreme Court decided Burlington Northern Santa Fe Railroad v. White, and confirmed what many employment lawyers have long believed – that relation cases are often more dangerous to employers than the discrimination claims that precede the retaliation. In what is a clear victory for employees, the Supreme Court established a new standard for what constitutes an adverse employment action under the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 that will (a) make it easier to prove retaliation and (b) will produce more trials of retaliation cases.

This case involved a female railroad worker who initially made a claim of sexual harassment that was sustained by the railroad. She then claimed that the company retaliated against her by (1) assigning her to a more difficult position (but still within her job classification) and (2) suspending her without pay for thirty-seven days for insubordination, despite the fact that she was reinstated and given full back pay after filing a grievance. Her retaliation case went to trial and the jury returned a $43,500.00 verdict in favor of the employee, which included $3,250.00 in medical expenses.

In upholding the jury verdict, the Supreme Court rejected the argument that retaliation claims could only brought when there was an “ultimate employment decisions” which involve compensation, terms, conditions and privileges of employment. To use a phrase found in an earlier case, the Court found that an employee need not suffer a “tangible employment action” such a firing, failure to promote, reassignment with significantly different responsibilities or significant change in benefits in order to bring a retaliation claim under federal law.
Rather, the Supreme Court concluded that Title VII’s anti-retaliation provision “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace” because such a limitation “would not deter the many forms that effective retaliation can take.” The Court accepted the objective “reasonable employee” standard used by some lower courts and held an employee may sue for retaliation if a reasonable employee would have found the retaliatory conduct to be “materially adverse”, i.e. the conduct “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The Court took pains to explain that trivial harms could not be viewed as retaliation but that each claimed act of retaliation must be viewed in the particular circumstance of each case. In so doing, it signaled the lower courts that fewer cases should be dismissed since it is usually for a jury to decide what a “reasonable employee” would view as “materially adverse” enough to dissuade him/her from making a discrimination complaint. Applying this test to the facts of the case, all nine justices agreed that the reassignment to a more physically demanding position and the suspension without pay (although later revoked) was sufficiently adverse to justify the jury’s award in favor of the plaintiff.
This case will undoubtedly foster an increase in Title VII retaliation claims. It creates a much broader standard of harm that will qualify as retaliation, which in turn will result in more jury decisions over what is “reasonable”. It also increases the burden on employers to screen employment actions and decisions that do not directly impact core employment rights or that are outside the normal scope of employment if they would tend to dissuade an employee from reporting employment discrimination. Finally, the case illustrates that traditional employer responses that a “mere” reassignment within a job classification or that post hoc correction of suspensions are not sufficiently adverse to constitute retaliation may no longer be effective.

If you have any questions about this case or employment retaliation in general, please contact us at 856-642-6445.

-Tom Barron

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