Supreme Court bolsters worker protection in anti-retaliation cases.

Employees who file anti-discrimination suits must be fully protected from retaliation under Title VII of the Civil Rights Act, even if the retaliatory acts occur off the job, the U.S. Supreme Court has ruled. The unanimous decision ties up several loose ends that the circuit courts had left unresolved and broadens worker protections under Title VII. (Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006).)

"The anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment," Justice Stephen Breyer wrote for the Court. The justices set up a clearly defined standard for lower courts to use when judging retaliation claims, noting that "we believe 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."

"This is a tremendous victory for plaintiffs," said Michael Foreman, deputy director for legal programs for the Lawyers' Committee for Civil Rights Under Law, which filed an amicus brief in the case. "It sets a very broad base for protection and acknowledges that actions outside the workplace can also have consequences."

The June opinion had a marked pro-employee slant, a fact that may have surprised some observers of the increasingly conservative Court.

Foreman said, "We were not surprised by the result, but we were very surprised by the strength of the Court's opinion. That surprised a lot of people, I think."

Or as Daniel Westman of McLean, Virginia, told the New York Law Journal, "The decision is huge--hugely bad for me as a defense lawyer."

Sheila White was the only woman working as a forklift operator at the Burlington Northern railway yard in Burlington, Tennessee. In 1997, she filed a complaint with the company alleging that her supervisor, Bill Joiner, had made harassing and inappropriate comments to her.

After an internal investigation, the railway suspended Joiner for 10 days without pay and ordered him to attend sexual harassment classes. Shortly after that, White's "roadmaster," Marvin Brown, told White he was reassigning her from the forklift to more standard laborer tasks, saying that a "more senior man" should have the forklift job since it was an easier and "cleaner" task than being a laborer.

White filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and then filed a retaliation charge saying that Brown had started following her around and monitoring her daily activities. A few days after White filed the second complaint, Brown told a supervisor that she had been insubordinate; she was suspended without pay for 37 days.

After the suspension, another company investigation cleared her of the insubordination charge and reinstated her with back pay. White filed an additional retaliation charge with the EEOC.

A jury found in White's favor. Initially, the Sixth Circuit Court of Appeals reversed the judgment, but after a second, en banc, hearing, the court found for White on both retaliation claims. The case then went to the Supreme Court.

The Court found that the "standard for judging harm must be objective," which it defined as something that would deter a reasonable employee from filing a complaint. It avoided a blanket approach that would consider every unkind act as retaliation: "The significance of any act of retaliation will often depend upon the particular circumstances," Breyer wrote. "Context matters."

The justices took pains to differentiate "significant" harmful acts from "those petty slights or minor annoyances that often take place at work and that all employees experience."

For example, Breyer wrote, "a supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by 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 about discrimination."

Foreman said the opinion will define future anti-retaliation lawsuits, because it sets out a clear measurement to replace the competing standards used by the circuit courts.

"The case is very fact-specific," he said. "But the Court also went beyond the facts of this case to show how broad anti-retaliation provisions are, that they are real, that they have meaning, and that they should be protected."