United States Supreme Court Expands Reach of Retaliation Provisions of Title VII: Retaliation can include personnel actions that are “materially adverse” to the employee.

Background
In a case brought by Sheila White against her employer for discrimination and retaliation under Title VII, the United States Supreme Court issued a decision which will have significant impact upon the way employers must act in order to prevent retaliation charges.

Facts
In Burlington Northern and Santa Fe Railway Company v. Sheila White (USSC June 2006) Sheila White was employed as a “track laborer” whose primary responsibilities were to operate a forklift. White, the only woman working in the Maintenance of Way department, complained to the railway company that her supervisor, a male, had repeatedly told her that women should not be working in that department and also made insulting remarks about her in front of other employees.

The employer responded by conducting an investigation; as a result, the supervisor was suspended for ten days and required to attend sexual harassment prevention training. White was advised soon afterwards that “a more senior man” would be taking over her forklift driving position, and that she would perform “standard track laborer tasks.” White filed a complaint with the EEOC contending that her reassignment was unlawful gender-based discrimination and retaliation for having complained about her supervisor. A subsequent EEOC complaint contended that the Company had placed her under “surveillance” and was monitoring her work. At trial, the jury found that the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspension without pay amounted to retaliation.

Shortly after filing her second EEOC complaint, White was suspended without pay after alleged insubordination to a supervisor. White invoked the company’s internal investigation procedure, which led to an investigation and conclusion that White had not been insubordinate. She was reinstated with full back pay; however she did not receive any earnings for a period of 37 days.

Different Legal Standards
The Supreme Court granted hearing in this case in order to establish a uniform standard throughout the Circuits to determine when an employer has engaged in unlawful “retaliation” against an employee for complaining about an alleged violation of her rights under Title VII.

Several standards had been established by various circuits. The most conservative position required the employee to establish that the complained of act involved an “ultimate employment decision,” such as hiring, discharging, promoting, granting leave, and compensation. The most liberal standard required the complaining party to simply establish an “adverse treatment” based on a retaliatory motive which was “reasonably likely to deter the charging party or others from engaging in protected activity.”

The Applicable Statute
The Supreme Court started its analysis by quoting the relevant sections of Title VII and noted that the core anti-discrimination provisions prohibit discriminatory practices with respect to “hire,” “discharge,” “compensation,” and “terms, conditions, or privileges of employment,” thus limiting the basic anti-discrimination provisions to conditions that “affect employment or alter the conditions of the workplace.”

However, the Court noted that the anti-retaliation provisions of Title VII are not so limited and do not track the language of the core anti-discrimination provisions; Congress, in adopting the anti-retaliation provisions, intended them to extend beyond the workplace. The Court noted, “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” (emphasis in opinion). The Court referred, by way of example, to an employer filing false criminal charges against an employee who complains about discrimination.

Definition of Unlawful Retaliatory Acts
The Court concluded that in order to establish retaliation, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse. . . .” This standard was explained as meaning that the action might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The Court emphasized the “materially” aspect of the standard, noting that Title VII does not establish “a general civility code for the American workplace.” Thus, “petty slights, minor annoyances, and simple lack of good manners” are normally not sufficient to establish prohibited conduct. However, the court noted that “Context matters.” As the Court stated: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

Conclusion
Based on these standards the Court concluded that the acts of Burlington’s supervisors could be found to constitute unlawful retaliation, as the jury had concluded. With respect to the reassignment of job duties within the same classifications of employment the Court noted that almost every job description includes some duties and responsibilities which are less desirable than others, and that reassignments could be retaliatory if a “reasonable person” would conclude that the reassignment would have been “materially adverse.” Here there was evidence that track labor duties were “more arduous and dirtier” than forklift duties, and that the forklift job was considered “a better job.” With respect to the denial of pay for 37 days, even if reimbursed, the Court noted that “Many reasonable employees would find a month without a paycheck to be a serious hardship.”

Impact of Decision
The Burlington/White case establishes that a retaliation claim by an employee may be based on much broader facts than a typical discrimination claim. A typical discrimination claim is limited to actions arising directly out of the workplace and limited to discrimination with respect to hiring, firing, promotions, demotions and other terms and conditions of employment. However, a retaliation claim can be based on any “materially adverse” action which is alleged to have been taken as a result of the employee making a protected claim under Title VII. Thus, not only any actions directly related to work assignments and other terms and conditions of employment, but any action, whether or not directly related to work, can form the basis of a retaliation claim, so long as a “reasonable employee” would consider the action to be “materially adverse” to have been taken by the employer to “dissuade a reasonable worker from making or supporting a charge of discrimination.”

Employers must be doubly cautious when responding to claims of unlawful discrimination under Title VII, as personnel actions that are viewed as “materially adverse” to a particular individual may lead to charges of unlawful retaliation. Since the issues are factual in nature, it will be difficult to obtain summary judgment and therefore the jury will be left to determine if the employer’s retaliatory action was “materially adverse” to the employee and whether a “reasonable worker” would be dissuaded from making a discrimination charge because of the employer’s action. Thus, a careful investigation of the supportable facts is essential before making any change that may arguably be deemed retaliatory.