Retaliation: Employers Had Better Watch Their Backs: Burlington Northern & Santa Fe Railway Company v. White
- Last year, 75,428 charges were filed with the U.S. Equal Employment Opportunity Commission (EEOC). Title VII retaliation charges comprised over 25 percent, or 19,429, of the total charges filed in 2005. Indeed, retaliation claims are on the rise and have doubled in filings since 1992. Although the underlying discrimination claim may often be dismissed at the dispositive motion stage, retaliation claims often survive and result in costly settlements or verdicts. On June 22, 2006, the U.S. Supreme Court issued its opinion in Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), which impacts how employers should treat employees who have lodged internal or external employment grievances, and may give new impetus to this upward trend in retaliation filings.
Circuit Split on What Constitutes Retaliation
Prior to the Supreme Court’s opinion, various courts applied differing standards with regard to what constituted actionable retaliation in the employment context. Some courts, like the Fifth Circuit,1 held that an action for retaliation could exist only where an ultimate employment decision occurred, such as firing, denying promotions, and lowered compensation. Other circuits adopted a broader scope, such as the Ninth Circuit,2 which followed the EEOC’s interpretation,3 and held that plaintiffs must simply establish adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. The 11th Circuit had adopted a middle of the road approach, requiring that a “serious and material change in the terms, conditions, or privileges of employment” be shown in order to establish an adverse action.4 To say the least, there was no uniform standard for adverse employment actions in retaliation cases.
The Supreme Court acknowledged this inconsistency and sought to remedy it. In Burlington, the Supreme Court set out to answer the following two distinct, yet interrelated questions: 1) Does Title VII’s antiretaliation provision confine actionable retaliation to activity that affects the terms and conditions of employment? 2) How harmful must the adverse actions be to fall under the scope of Title VII’s antiretaliation provision?5
Before discussing the court’s answers to these question, an overview of the facts of the Burlington case provides the context.
The Burlington Facts
The plaintiff, Sheila White, was hired as a “track laborer” in 1997. The job duties that fell within that job title included removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White began working for Burlington, while still holding the job of track laborer, she was assigned to operate the forklift because she had prior experience. It was undisputed that operating the forklift was her primary responsibility, although she also performed some of the other track laborer tasks.6
Shortly after White began working at Burlington, she complained to management that her supervisor had made gender-disparaging remarks. After an internal investigation, her supervisor was suspended for 10 days and ordered to attend a sexual-harassment training session. When management informed White of the discipline levied against her supervisor, she was also removed from her forklift duties and assigned to standard track laborer tasks. The explanation given for the reassignment was that co-workers had complained that a “more senior man” should have the “less arduous and cleaner job” of forklift operator. White filed a complaint with the EEOC claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation against her for previously complaining about workplace harassment.7
Soon thereafter she filed a second retaliation charge with the EEOC claiming management had placed her under surveillance and was monitoring her daily activities. A few days after filing her second charge with the EEOC, White and a supervisory employee disagreed about a particular task. That employee informed management that White had been insubordinate and management immediately suspended White without pay. White made use of Burlington’s internal grievance procedures which ultimately led to the conclusion that White had not been insubordinate. Management reinstated White to her position and awarded her back pay for the 37 days she was suspended. White then filed a third retaliation charge with the EEOC based on the suspension.8
White’s litigation based on her change of job responsibilities and suspension for 37 days without pay was presented to a jury. The jury found in White’s favor on both aspects of her retaliation claim and awarded her approximately $43,500 in compensatory damages. After various appellate arguments, the Sixth Circuit affirmed the trial court’s judgment in White’s favor but the members of the appellate court differed among themselves as to the proper standard to apply to her claims.9
The Supreme Court Weighs In
In reaching its decision, the Supreme Court first examined the language of the two major substantive clauses of Title VII, the antidiscrimination and antiretaliation provisions.
• Looking at the Text — Section 703(a) sets forth Title VII’s core antidiscrimination provision in the following terms:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.10
Section 704(a), also known as Title VII’s antiretaliation provision, reads as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.11
Looking closely at the italicized language in the above two provisions, the Supreme Court noted that the antidiscrimination portion specifically limited its scope to certain employment terms such as compensation and discharge. The Supreme Court found that no such limiting language appeared in the retaliation provision, which instead used the broad language “to discriminate against.” Thus, it determined that the antiretaliation provision is broader in scope.12
• Analyzing the Purpose — The Supreme Court also found that the two provisions have a different purpose. Specifically, the Supreme Court found that Title VII’s antidiscrimination provision seeks to foster a workplace where individuals are not discriminated against because of their race, ethnicity, religion, or gender. In contrast, the court found the antiretaliation provision seeks to secure that primary objective by preventing employers from interfering, through retaliation, with employees’ efforts to secure or advance enforcement of Title VII’s basic guarantee. The Supreme Court then went a step further and decided that while the objective of the antidiscrimination provision could be secured by focusing solely on employers’ actions in the workplace, the same did not hold true for the antiretaliation provision. Interestingly, the court noted that employers can effectively retaliate against employees by taking action not directly related to their employment, but did not expound upon this concept.13
The New Standard for Actionable Retaliation
The Supreme Court has now answered the query of whether Title VII’s antiretaliation provision confines actionable retaliation to activity that affects the terms and conditions of employment with a resounding “no.” It has also answered the question of how harmful the adverse actions must be to fall within the scope of Title VII’s antiretaliation provision. The new standard espoused by the Supreme Court is that plaintiffs must show that “a reasonable employee would have found the challenged action materially adverse [meaning that the action] might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”14
The Supreme Court took great pains to reaffirm its prior stance that material adversity is required because courts should not be bothered with insignificant or trivial harms. For example, the Supreme Court readopted its position that Title VII does not set forth a general civility code for the American workplace, and that employee complaints regarding ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, occasional teasing, and personality conflicts, are insufficient. Instead, the Supreme Court has mandated that courts employ a reasonable employee or objective standard. However, this new standard also turns on a subjective component as well because the Supreme Court has expressly stated that “context matters.” The significance of any given act of retaliation will often depend upon the particular circumstances. For example, the Supreme Court found that a schedule change may make little difference to many workers, but matter enormously to a young mother with school age children. The Supreme Court also pointed out that a supervisor’s refusal to invite an employee to lunch is normally trivial, but excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement constitutes actionable retaliation under the new standard.15
Applying the New Standard to the Burlington Facts
Armed with this newly crafted standard of Title VII retaliation, the Supreme Court affirmed the lower court’s holding that White had been the victim of unlawful retaliation. Burlington argued that the reassignment of her duties could not constitute retaliation where both her former and present duties fell within the same job description of “track laborer.” However, the Supreme Court reasoned that almost every job category involves some responsibilities and duties that are less desirable than others and found that White’s reassignment caused her to work harder and in dirtier conditions. With that said, the Supreme Court remarked that every reassignment of job duties is not automatically actionable but instead, whether a particular reassignment is material depends upon the circumstances of the particular case and should be judged from the prospective of a reasonable person in the plaintiff’s position, considering all the circumstances.16
The Supreme Court also made short order of Burlington’s argument that White’s 37-day suspension without pay lacked significance because she was ultimately reinstated with back pay. The Supreme Court emphasized that White and her family had to live for 37 days without income and that many reasonable employees would find a month without a paycheck to be a serious hardship.17 The bottom line is that Title VII retaliation now includes any action that materially injures or harms an employee who has complained of discrimination and would dissuade a reasonable worker from making or supporting a charge of discrimination.
The Forecast for the Future
With this broadened definition of actionable retaliation, expect more retaliation claims. While the new Supreme Court decision is limited to retaliation under Title VII, one can reasonably foresee that this broadened definition of retaliation will soon extend to age and disability claims, FLSA and FMLA claims, and state antidiscrimination laws as well. The bad news for employers is that although the Supreme Court took great pains to explain that the new definition of retaliation is based on a reasonable person or objective standard, the caveat is that whether an employer’s conduct will be viewed as actionable retaliation depends on the context of each particular situation. As a practical point, retaliation claims now may be construed by courts as presenting a “jury question” that is improper for resolution via summary judgment motions. This translates into time-consuming and costly battles for employers.
Employers need to be very careful with any decisions which may affect employees who have complained about workplace discrimination. While no one is suggesting that employees who have complained about workplace issues are “untouchable,” the currency of the Supreme Court decision means that courts will be inexperienced with tackling these types of claims and may err on the side of being overly cautious when refusing to dismiss them.
What This Means to Employers
In sum, employers need to know that the common terms “tangible” or “ultimate” employment action now have nothing to do with the issue of whether an employee has a viable retaliation claim. Concrete actions such as hiring, firing, and failing to promote are no longer required. All that is required is an action that would be materially adverse to a reasonable employee and one which may dissuade a reasonable worker from making or supporting a charge of discrimination.
Employers should expect heightened scrutiny with regard to any action they take against employees who have voiced complaints about discrimination. With this in mind, employers should endeavor to:
• Implement and strictly enforce policies prohibiting any kind of retaliation.
• Review proposed actions regarding employees who have complained about discrimination to confirm that legitimate, nonretaliatory reasons exist for the action.
• Follow up with employees who have complained about discriminatory treatment and keep those employees apprised of investigative findings.
• Discipline, including possibly termination, persons who have retaliated against other employees.
Only time will tell how courts will apply the Supreme Court’s new standard of retaliation. In the meantime, taking the steps enumerated above should make your clients’ lives, and your jobs, easier if you are forced to defend retaliation actions in court.
1 Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).
2 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000).
3 See Compliance Manual at www.eeoc.gov/policy/docs/retal.html.
4 Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). See also Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998).
5 Burlington, 126 S.Ct. at 2411.
6 Id. at 2409.
9 White v. Burlington Northern & Santa Fe Railroad, 364 F.3d 789 (6th Cir. 2004).
10 42 U.S.C. §2000e-2(a)(emphasis added).
11 42 U.S.C. §2000e-3(a)(emphasis added).
12 Burlington, 126 S.Ct. at 2411-13.
13 Id. at 2412.
14 Id. at 2415.
15 Id. at 2415-16.
16 Id. at 2416-17.
17 Id. at 2417-18.
Tori L. Winfield practices primarily in the area of labor and employment law at Phelps Dunbar in Jackson, MS. She routinely advises corporate clients on federal and state employment laws dealing with race, age, disability, gender, national origin, and sexual orientation discrimination. She earned her J.D. from the University of Florida and a B.A. from the University of Miami.
This column is submitted on behalf of the Labor and Employment Law Section, Cynthia Sass, chair, and Frank E. Brown, editor.