In October 2, 2006, the United States Supreme Court began its new term. This is a good opportunity to review a decision the Court handed down at the end of last year’s term. In Burlington Northern and Santa Fe Railway Company v. White, the Supreme Court resolved a dispute among the various Courts of Appeals pertaining to the anti-retaliation provision of the Civil Rights Act. The Court held that this provision is not limited to discriminatory actions that affect the terms and conditions of employment, adopting a new standard to determine whether an employer has retaliated against its employee. The anti-retaliation provision forbids employer actions that discriminate against an employee or job applicant because he or she has opposed a practice prohibited under the Civil Rights Act or has made a charge, testified, assisted or participated in an investigation proceeding or hearing.
Soon after Burlington Northern hired Sheila White as a track laborer, she was reassigned primarily to operate a forklift, as well as continuing to perform some of the track laborer tasks. Several months later White complained to upper management that one of her immediate supervisors made discriminatory remarks to her. The supervisor was suspended for 10 days. A few weeks later she was told about the suspension. At the same time White was removed from her forklift duties and reassigned to perform only standard track laborer tasks. As a result, White filed a complaint with the Equal Employment Opportunity Commission. Shortly thereafter, a second supervisor advised Burlington Northern that White had been insubordinate. White was immediately suspended without pay for 37 days (although after an internal investigation, Burlington Northern reinstated White to her position and she was awarded her back pay).
White filed an action claiming that Burlington Northern’s actions of changing her job responsibilities and suspending her without pay for 37 days amounted to an unlawful retaliation in violation of the Civil Rights Act. A jury found in White’s favor on both claims, and the verdict was affirmed by the Court of Appeals.
The Supreme Court agreed to hear this case to resolve a dispute among the various Courts of Appeals regarding whether actions challenged as retalitory have to be employment or workplace related. Also the Court agreed to determine how harmful that action must be to constitute retaliation. The Court observed that there were at least four different standards being applied in the Lower courts. After reviewing the relevant statutory, common and administrative law, the Supreme Court held that the anti-retaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment; rather, its scope extends beyond workplace-related or employment-related retaliatory acts and harms.
The Burlington Northern Court also set forth the proper standard that a trial court must utilize to determine if a plaintiff proved a retaliatory action: “The plaintiff must show that a reasonable employee would have found the challenged action materially adverse,” which in the context of retaliatory measures “means that it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court noted that plaintiffs must allege material adversity and not trivial harms such as petty slights or minor annoyances that sometimes take place at work. The Court established the standard as objective (i.e. what a reasonable employee would perceive as adverse) because it believed that an objective standard is more judicially administrable. The Court established a general standard because whether or not an action is retaliatory is almost always fact-based.
After applying the above standard to the facts of the case, the Court concluded that sufficient basis existed to support the jury’s verdict on both claims. With respect to White’s reassignment, the Court held that a jury could reasonably conclude that the reassignment of job responsibilities would have been materially adverse to a reasonable employee. With respect to the suspension, the Court held that a jury could reasonably conclude that an indefinite suspension without pay could act as a deterrent.
Employment law continues to evolve at a rapid pace. If you have any questions in this area, please contact us.
– Andrew Berenson
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