U.S. Supreme Court Defines Scope of Retaliation Claims Under Federal Discrimination Law

By Wilfred J. Benoit, Jr., James W. Nagle, Robert M. Hale and Bradford J. Smith

In its recent decision in Burlington Northern and Santa Fe Railway Company v. White, the United States Supreme Court provided important guidance as to what may constitute prohibited retaliation under Title VII of the Civil Rights Act of 1964.

In addition to prohibiting discrimination in terms and conditions of employment on the basis of race, color, religion, sex and national origin, Title VII contains the following anti-retaliation provision:

Courts have disagreed as to the scope and nature of employer actions that may provide a basis for a retaliation claim under the statute. Different courts have reached different conclusions about whether an alleged retaliatory action must be employment or workplace related, and about how harmful that action must be in order to constitute unlawful retaliation. For example, some courts have limited actionable retaliatory conduct to adverse decisions involving "ultimate employment decisions," such as hiring, granting leave, discharging, promoting, demoting or compensating employees. Other courts have adopted a much broader definition, holding that an employee complaining of retaliation need only show that "the employer’s challenged action would have been material to a reasonable employee."

The Supreme Court’s BNSF decision addressed the differing standards set by the lower federal courts. Adopting a "materially adverse action" standard, the Court held that retaliation claims are not limited to employer actions that adversely affect the employee’s compensation, terms, conditions or privileges of employment. Indeed, retaliation claims may be based on employer actions "not directly related to … employment or [that] cause[] harm outside the workplace." In order to establish a retaliation claim, the complaining employee must show that his or her employer took an action against the employee that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."

The plaintiff in the BNSF case, Sheila White, was employed as a track laborer. The job involved removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage. Shortly after the outset of her employment, she was assigned to operate a forklift truck as her primary responsibility. This assignment was cleaner and less arduous work than the other track laborer tasks. A few months after her hire, White complained to management about inappropriate, sexist remarks allegedly made by her immediate supervisor. After an internal investigation, management suspended the supervisor for 10 days and ordered him to attend sexual harassment training. At the same time, however, White was removed from her forklift duty and assigned to perform only the other standard track laborer tasks. White then filed a complaint with the Equal Employment Opportunity Commission, alleging that the reassignment was due to sex discrimination and retaliation for her internal complaint about her supervisor’s sexist remarks.

Two months later, White filed a second retaliation charge with the EEOC, alleging that management had placed her under surveillance and was monitoring her daily activities. A few days after filing this second EEOC charge, White became embroiled in a disagreement with her supervisor about a job issue, and she was suspended without pay for 37 days for insubordination. During an internal grievance process, the company concluded that White had not been insubordinate and reinstated her with full back pay. She filed a third EEOC charge based on the suspension.

White eventually filed a civil lawsuit, claiming that the change in her job responsibilities and her suspension amounted to unlawful retaliation under Title VII. In its defense, BNSF contended that the actions White complained about were not sufficiently consequential to constitute actionable retaliation because they did not adversely affect her compensation, terms, conditions or privileges of employment. BNSF argued that the reassignment of duties could not be retaliatory discrimination because the duties in question fell within her job description.

The Court rejected this argument. It stated that, while "reassignment of job duties is not automatically actionable," "whether a particular reassignment is materially adverse depends upon the circumstances of the particular case and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances." In White’s case, the track laborer tasks to which she was reassigned were "more arduous and dirtier," the forklift operator position required more qualifications than the other tasks and therefore was more prestigious, and White’s co-workers considered the forklift operator position to be a better job. Under these circumstances, the Court concluded that a jury could reasonably conclude that the reassignment of responsibilities would have a materially adverse effect on a reasonable employee.

The Court did not consider BNSF’s rescission of White’s suspension, with full back pay, to preclude a retaliation claim based on that suspension. The Court reasoned that "many reasonable employees would find a month without a paycheck to be a serious hardship", and noted that "White and her family had to live for 37 days without income [and] did not know during that time whether or when she could return to work." White testified that she suffered emotional difficulty and obtained medical treatment for the depression she felt as a result of the suspension. Since "[a] reasonable employee, faced with a choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former," the Court upheld the jury’s finding that White’s suspension, although rectified by BNSF, constituted actionable retaliation.

While the BNSF decision does expand the scope of retaliation claims in certain circumstances, the decision actually should serve to preclude many such claims that are based on perceived slights and hostilities. The Court ruled that retaliation claims must be based on "material adversity," not "trivial harms." It emphasized that Title VII "does not set forth a general civility code for the American workplace," and that "an employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work." Personality conflicts, "snubbing" and a lack of good manners are not actionable.

Further, in the words of the Court, "context matters." For example, as the Court pointed out, a schedule change may make little difference to many employees, but "may matter enormously to a young mother with school age children." A supervisor’s refusal to invite an employee to lunch is normally "a non-actionable petty slight," but "to retaliate by excluding an employee from a weekly training lunch might well deter a reasonable employee from complaining about discrimination."

Managing employees who have complained about discrimination presents significant challenges for employers. See Goodwin Procter’s Labor and Employment Law June 12 and June 17, 2003 Breakfast Seminar Materials, at [http://www.goodwinprocter.com/getfile.aspx?filepath=/Files/publications/LE_adversarial_situations_06_03.pdf]. The law prohibits retaliation against any complaining employee who reasonably believes that the employment practice she is protesting violates Title VII. As one court noted, "It … happens – more frequently than might be imagined – than an employee whose primary claim of discrimination cannot survive pretrial dispositive motions is able to take to trial the secondary claim [that the employer retaliated against the employee]." Jury verdicts in favor of employees claiming retaliation often include sizeable emotional distress and punitive damage awards. Employers should consider carefully any contemplated actions with respect to employees who have complained of (or offered support for a co-worker’s claim of) discrimination in order to ensure that, if the action is materially adverse, there are legitimate, non-retaliatory reasons to support the decision.

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.