June 23, 2006
On June 22, 2006 the Supreme Court resolved a significant rift among lower courts and established broad protection for employees claiming retaliation based on complaints of workplace discrimination. In a decision that is likely to trigger an increase in retaliation claims, particularly in those federal circuits that had previously followed a more restrictive standard, the high court held in Burlington Northern & Santa Fe Railway Co. v. White that retaliation claims under Title VII of the Civil Rights Act of 1964 may be based upon any employer action that a reasonable employee in the plaintiff’s circumstances would have found to be materially adverse, without regard for whether the action results in a loss of compensation, benefits, or title. This holding overturns a much narrower standard for retaliation claims in several of the federal circuits and opens the door to increased litigation over whether conduct in the wake of a discrimination claim is “materially adverse” to a particular claimant.
The Court’s Decision
In Burlington Northern, respondent Sheila White, the first female employee in the Maintenance of Way department at BNSF’s Tennessee Yard, was hired as a “track laborer” and assigned to operate a forklift. The “track laborer” job description included forklift operation as well as other less desirable tasks. After White complained to management that her immediate supervisor made insulting and inappropriate gender-based remarks to her, White was removed from forklift duty and assigned to dirtier and more strenuous track laborer tasks. White filed a complaint with the EEOC claiming that her reassignment constituted retaliation in violation of Title VII. Following an alleged dispute with another supervisor, White was suspended without pay. After an internal grievance procedure, however, White was reinstated with back pay. White subsequently filed an action in federal district court, claiming that BNSF retaliated against her in violation of Title VII by both changing her job responsibilities and suspending her without pay. Both the district court and circuit court ultimately found that White had suffered unlawful retaliation under Title VII.
Title VII’s prohibition on discrimination specifically prohibits discriminatory practices with respect to “hir[ing],” “discharge,” and “compensation, terms, conditions, or privileges of employment.” See 42 U.S.C.S. § 2000e-2. Title VII’s anti-retaliation provision, in contrast, contains no such limiting language, and merely prohibits “discriminat[ing] against any . . . employees” for opposing an unlawful employment practice. See 42 U.S.C.S. § 2000e-3. In affirming the district court’s decision in Burlington Northern, the Sixth Circuit applied the same standard to White’s retaliation claim as it applied to substantive discrimination claims, requiring a showing of an adverse employment action.
Other Courts of Appeal had developed varying standards for whether an alleged act of retaliation must be employment related and for how harmful such an act must be in order to rise to the level of retaliation. The Fifth and Eight Circuits applied a restrictive approach, requiring that an act involve an “ultimate employment decision” such as hiring, leave, discharge, promotion or compensation in order to constitute retaliation. The Seventh and District of Columbia Circuits held that an act may be retaliatory if it is “material to a reasonable employee.” The Ninth Circuit adopted the view that a retaliatory act is one that is reasonably likely to deter individuals from engaging in protected activity.
In an opinion by Justice Breyer and joined by seven other Justices, the Supreme Court held that because the language of Title VII’s anti-discrimination provision differs from that of the anti-retaliation provision, there need not be a link between the challenged retaliatory conduct and the terms and conditions of employment. Title VII’s anti-discrimination provision seeks to protect individuals from adverse employment actions based on who they are, while the anti-retaliation provision seeks to protect individuals based upon their conduct. The Court found that Congress’s goal of protecting employees from retaliation would not be met if Title VII’s anti-retaliation provision only prohibited conduct directly related to employment or the workplace, as there are many other forms of retaliation in which employers could engage that might cause an employee harm outside of the workplace.
The Court further held that actionable retaliation claims must be based upon conduct that a “reasonable employee would have found . . . materially adverse.” Thus, the retaliatory act must be of the type that would dissuade the employee from making or supporting a charge of discrimination. Although the Court noted that this standard would not be met by the “petty slights” and “minor annoyances” that all employees face from time to time such as personality conflicts, snubbing, and lack of good manners, it rejected the requirement of the Fifth and Eight Circuits that retaliatory conduct must involve an “ultimate employment decision.”
Implications for Employers
Because the Supreme Court’s Burlington Northern standard turns upon whether specific conduct might reasonably have deterred the particular plaintiff, the standard for retaliation claims will be highly fact specific. Indeed, the Court itself notes that “the significance of any given act of retaliation will often depend upon the particular circumstances” which may include “a constellation of surrounding circumstances, expectations, and relationships that are not fully captured by a simple recitation of the words used or the physical acts performed.”
By way of example, the Court notes that while refusal to invite an employee to lunch might normally fall short of constituting retaliation, excluding an employee from weekly training lunches that contribute to his professional advancement might support a retaliation claim. This example leaves open a broad range of conduct between the two extremes. Under the Court’s new standard, will a retaliation claim exist if co-workers choose not to invite a claimant in a sales position to regular lunch or after-work outings that, although not formally structured, often include discussions regarding business leads or marketing strategies?
Likewise, the Court notes that conduct that is not retaliatory to most employees may nevertheless support a claim of retaliation based on a particular employee’s individual circumstances. The Court’s opinion suggests, for example, that a “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.” As Justice Alito observed in a separate concurring opinion, this standard introduces a number of individualized considerations into otherwise everyday management actions. Perhaps foreshadowing the difficulty that employers and courts are likely to have in applying the new standard, Justice Alito notes, “How many more individual characteristics a court or jury may or must consider is unclear.”
For employers, the decision is likely to mean a significant increase in retaliation claims, which already appear in nearly a third of all filings with the EEOC. Not only does the decision create a much more favorable standard for claimants in those jurisdictions that had previously applied a stricter test to retaliation claims, but the context-sensitive and claimant-specific standard it announces will create uncertainty (and new litigation opportunities) even in those jurisdictions that had applied a more liberal rule to such claims. Virtually any routine management actions such as schedule changes and performance counseling will be susceptible to being viewed as retaliatory by an employee who has lodged a discrimination claim. Moreover, because retaliation claims will be measured by the unique characteristics of the particular claimant and the “constellation of surrounding circumstances,” those claims will be less susceptible to early resolution through summary judgment.
Accordingly, employers must be particularly vigilant in their treatment of employees who have complained of workplace discrimination. While it may be human nature that interactions between supervisors and subordinates will sometimes change after a complaint is raised, employers must guard against actions that cross the indistinct and context-sensitive line between “snubbing” or “petty slights” and those which might be viewed as “materially adverse” to the complainant in light of the circumstances.
Gibson, Dunn & Crutcher has one of the country’s preeminent labor and employment practices, with approximately seventy lawyers nationwide assisting corporations with their most sensitive and challenging matters. For more information on this decision or to discuss its impact, please contact the Gibson, Dunn & Crutcher attorney with whom you work or Karl Nelson in Dallas (214-698-3203; firstname.lastname@example.org); Eugene Scalia in Washington, DC (202-955-8206; email@example.com); or Deborah Clarke in Los Angeles (213-229-7903; firstname.lastname@example.org).
© 2006 Gibson, Dunn & Crutcher LLP
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