Workers win in retaliation case.

In one of the most important civil rights cases to be decided in recent years, Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court made it easier for plaintiffs in employment discrimination suits to establish a cause of action for retaliation. (1) But it stopped short of providing a clear definition of what constitutes actionable retaliation, finding that "the significance of any given act of retaliation will often depend upon the particular circumstances." (2)

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, gender, and religion? The law also forbids an employer from "discriminat[ing] against" an employee or job applicant because the individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated" in a Title VII proceeding or investigation)

Although Title VII clearly prohibits retaliation against those who bring discrimination complaints, the circuit courts had disagreed on a standard for what is actionable. The Fifth and Eighth circuits adopted the most stringent standard: Retaliation claims could only arise from "ultimate employment decisions," like a demotion or termination. (5)

The Third, Fourth, and Sixth circuit courts took a more relaxed approach, defining an adverse employment action as one that has "an adverse effect on the 'terms, conditions, or benefits' of employment." (6)

The Seventh and D.C. Circuits adopted an even more lenient standard. These courts would not require proof that an ultimate employment decision had been made; instead, a plaintiff would merely have to show that the action would have been "material to a reasonable employee." (7) And the Ninth Circuit held that a plaintiff would merely have to show "'adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.'" (8)

The employee in Burlington Northern, Sheila White, was a forklift operator in a maintenance department for the railroad. She was the only woman in the workplace, and her immediate supervisor, Bill Joiner, made repeated derogatory comments to her. He also made insulting and inappropriate remarks in front of White's male colleagues.

White complained of sexual harassment to company officials. The company disciplined Joiner and ordered him to attend a sexual harassment training program, but it also removed White from her position and reassigned her to manual labor in the workplace. She was not officially demoted and did not suffer a cut in pay. White filed a complaint with the Equal Employment Opportunity Commission (EEOC), contending that her reassignment amounted to retaliation prohibited by Title VII.

While the EEOC complaint was pending, White had a disagreement with her supervisor over another matter, and the company suspended her for insubordination without pay. Later, the company concluded that White had not been insubordinate and ordered her to be reinstated with back pay.

White filed another retaliation claim with the EEOC based on this suspension and then brought a Title VII action against Burlington Northern in federal court, claiming that the company's action in reassigning her and in suspending her constituted unlawful retaliation.

Defining 'actionable'

In an opinion written by Justice Stephen Breyer, the Court unanimously ruled in favor of White. (9) The Court concluded: "In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." (10)

While employees do not need to show that they suffered a formal demotion or a decrease in pay to establish retaliation, the Court held, they must demonstrate that the conduct was serious enough to dissuade employees from coming forward.

"The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm," Breyer wrote. (11) Therefore, the lower courts will need to "separate significant from trivial harms." (12)

The Court offered relatively little guidance to lower courts on how to do this but stressed that "context matters." (13) The key, the Court said, is to look at the employer's action from the perspective of the reasonable employee. If the action is likely to cause employees to refrain from coming forward, then there is a claim for retaliation.

The Court also addressed whether the retaliation must occur in the workplace. Arguably, the Court's discussion of this issue is dicta because the case did not involve harassment outside the place of employment. Nonetheless, the Court expressly discussed the matter and adopted a broad definition of what constitutes actionable retaliation outside the workplace.

Breyer compared two provisions of Title VII, noting that [section] 703(a), which prohibits employment discrimination, refers to "hire," "discharge," "compensation, terms, conditions, or privileges of employment," "employment opportunities," and "status as an employee." (14) This "limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace," Breyer wrote. (15) By contrast, the provision of Title VII dealing with retaliation, [section] 704(a), contains "[n]o such limiting words." (16)

This difference is not co-incidental; it is based on Congress's desire to safeguard employees from all forms of retaliation that might discourage them from filing complaints of discrimination.

"[O]ne cannot secure [protection of employees] by focusing only upon employer actions and harm that concern employment and the workplace.... 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," Breyer wrote. (17) Simply put, a "provision limited to employment-related actions would not deter the many forms that effective retaliation can take." (18)

Beyond Title VII

By expressly rejecting the narrow definitions of retaliation embraced by several circuit courts, the Court has made it much easier for wronged employees to bring claims for retaliation. And while the case involves only the anti-retaliation provision of Title VII, many other federal laws contain anti-discrimination provisions, and plaintiff attorneys certainly can argue that the Court's definition of retaliation in Burlington Northern should be adopted in these other areas as well.

After Burlington Northern, the key issue to be litigated in retaliation cases will be: What is enough to cause a reasonable employee to refrain from coming forward with a grievance? The Court made it clear that there is no bright-line test and that a determination of retaliation always will be a matter of facts and context. This should help plaintiffs argue that the case should go to the jury.

It is striking that Breyer's opinion in Burlington Northern was joined by seven other members of the Court and that all nine justices concurred. Burlington Northern is truly a major victory for civil rights plaintiffs.

Notes

(1.) 126 S. Ct. 2405 (2006).

(2.) Id. at 2415.

(3.) 42 U.S.C. [section] 2000e-2(a) (2006).

(4.) 42 U.S.C. [section] 2000e-3(a) (2006).

(5.) Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); see also Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir.).

(6.) Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001) (quoting Munday v. Waste Mgmt. of N.A., Inc., 126 F.3d 239, 242 (4th Cir. 1997)); see also Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997); White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004).

(7.) Rochon v. Gonazales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (quoting Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).

(8.) Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (quoting Equal Employment Opportunity Compliance Manual: Retaliation, [section] 8, [paragraph] 8008 (1998)).

(9.) Justice Samuel Alito concurred in the judgment but disagreed with a portion of the opinion.

(10.) 126S. Ct. at 2415 (citations omitted) .

(11.) Id. at 2414.

(12.) Id. at 2415.

(13.) Id.

(14.) Id. at 2411.

(15.) Id. at 2412.

(16.) Id.

(17.) Id. (emphasis in original).

(18.) Id.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law and Political Science at Duke University.