United States: Supreme Court Expands Scope of Unlawful Retaliatory Conduct

As employers well know, it is often management's response to a complaint of discrimination, rather than the underlying action complained of, which can lead to liability under the anti-discrimination statutes. In such cases, liability is founded on a claim of "retaliation" as the result of a supervisor taking an adverse action against an employee because she complained of discrimination. After a complaint of discrimination is made, management is always faced with the challenge of balancing its right to ensure continued productivity and discipline in the workplace with the employee's right to oppose discrimination without being the subject of retaliatory conduct. The U.S. Supreme Court's latest decision in Burlington Northern and Santa Fe Railway Co. v. White has made management's job more difficult in these circumstances, as it has considerably widened the standard for what constitutes retaliatory conduct.

Anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"), specifically prohibit retaliation against employees who "opposed" unlawful discrimination or "made a charge, testified, assisted, or participated in . . . an investigation, proceeding, or hearing" regarding unlawful discrimination. The federal courts of appeals, however, have been unsettled on the issue of what could constitute actionable "retaliation" against an employee. In some Circuits, actionable retaliation was limited to acts that directly affected an employee's "terms and conditions of employment," such as hiring, firing, promoting, demoting and reducing pay. Other Circuits have held that retaliatory conduct could include less obvious forms of adverse employment actions, such as filing false criminal charges against an employee, modifying an employee's work schedule to a less desirable shift, assigning an employee to less desirable tasks or precluding an employee from participating in workplace training that could help his or her career.

In Burlington Northern, the Supreme Court attempted to resolve the split in the lower courts by adopting a broad standard for retaliation. The Court stated:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

The new standard then is - the retaliation provisions of Title VII are violated when a materially adverse employment action is taken in retaliation for protected activity that might deter a reasonable person from making or supporting a charge of discrimination.

In Burlington Northern, White was the only female employee in a track maintenance department, and performed work repairing train tracks. As a result of her prior experience, White primarily drove the forklift, which was considered a better job than the "more arduous and dirtier" work that White's male co-workers performed. During the period that she primarily operated the forklift, White complained about sexual harassment by a male supervisor. White was quickly reassigned to the other work that her co-workers performed, and a male employee was assigned to operate the forklift. Less than two weeks after her reassignment, White was suspended without pay for insubordination. After proceeding through the company's internal grievance process, White was reinstated with back pay for the 37 days during which she had been suspended.

White sued for discrimination and retaliation. White's retaliation claims were based on the company's modification of her duties (i.e., reassigning her from the forklift to less desirable duties) and the 37-day suspension. After a trial, White received a jury verdict in her favor for $43,500 for her claims of retaliation. On appeal, the Sixth Circuit agreed that the company's acts could constitute unlawful retaliation under Title VII.

The Supreme Court agreed and determined that, unlike the anti-discrimination provisions in Title VII, the language in the statute's anti-retaliation provision was not limited to certain kinds of adverse employment actions. The Court noted that Title VII's anti-retaliation provision broadly states, "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [they engaged in protected activity]." The phrase "to discriminate against" is not limited, whereas Title VII's anti-discrimination provisions state:

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.

The Court stated that the italicized portions of the anti-discrimination provisions set out limitations to the types of "unlawful employment practices." The Court then determined that the lack of any similar limiting descriptions in the anti-retaliation provision meant that the types of conduct that were to be protected from retaliation were to be construed more broadly.

The Supreme Court held that in order to establish a claim for retaliation, a plaintiff must show that a reasonable employee would have considered the retaliatory conduct to be materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" The Court specified that "materially adverse" conduct does not include such things as "petty slights or minor annoyances that often take place at work and that all employees experience." To illustrate the point, the Court distinguished between a supervisor's refusal to invite an employee to lunch, which would normally be trivial, and the supervisor's exclusion of an employee from a lunch meeting where training or career development activities were to take place. The Court also specified that "materially adverse" conduct "extends beyond workplace-related or employment-related retaliatory acts and harm." Thus, while every claim must be considered on a case-by-case basis, adverse action taken in response to protected activity may constitute unlawful retaliation even when it does not directly result in a tangible employment action, such as a discharge, a pay cut or a demotion.

What This Means for Employers

Although the Burlington Northern case was analyzed under Title VII, claims under other anti-discrimination statutes, such as the ADA and ADEA, are generally analyzed similarly. As a result of the Supreme Court's decision in this case, employers should be even more vigilant in the subsequent treatment of any employee who engages in protected conduct under one of the various anti-discrimination statutes. Before taking adverse action against an employee who has recently opposed discrimination or engaged in protected conduct, employers should think through the planned action carefully, diligently document their reasons and consult with employment counsel in order to ensure that they will be able to successfully defend against a possible claim of retaliation.

For more information or if you have a question about this Alert, please contact Eve I. Klein of our Employment & Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, among the 100 largest law firms in the United States, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets, and as part of an international network of independent law firms, Duane Morris represents clients across the nation and around the world.

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