Burlington v. White

Late last week, the U.S. Supreme Court resolved a four-way split among the U.S. Courts of Appeals regarding the standard for retaliation claims under Title VII. In a decision that has potentially significant implications for employers, the Court held that Title VII’s anti-retaliation protections extend to any materially adverse action – whether or not resulting in tangible economic harm to the employee and whether or not employment-related – that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259, slip op. (U.S. June 22, 2006).

In clarifying the standard for what constitutes retaliation, the Court’s ruling expands employee protection. In light of the fact that 30% of claims filed with the EEOC are retaliation claims, the Court’s decision is likely to have a far-reaching impact on employers – in how they respond to discrimination complaints and how they interact with employees who have made discrimination complaints.

Title VII forbids employment discrimination against any individual based on that individual’s race, color, religion, sex, or national origin. Title VII also includes an anti-retaliation provision that forbids an employer from discriminating against an employee or job applicant because that individual has opposed, or participated in the investigation of, any unlawful practice under Title VII.

In Burlington, Sheila White complained that her supervisor had made insulting and inappropriate remarks to her about women. Burlington disciplined White’s supervisor, but White was soon assigned to work as a standard track laborer, work that was more difficult and dirtier than her original assignment as a forklift driver. White filed a complaint with the EEOC. A few days later, following a disagreement with her supervisor, White was suspended without pay. Following an investigation, Burlington reinstated White with full backpay. White filed another retaliation claim based on her suspension and ultimately filed suit against Burlington.

In its defense, Burlington argued that White’s assignment to the track laborer job was not an adverse action because the track laborer’s duties fell within White’s original job description. Burlington also argued that White’s suspension without pay was not an adverse action because the company ultimately reinstated her with full backpay. A jury rejected these arguments and found in White’s favor on both claims. On appeal, a panel of the U.S. Court of Appeals for the Sixth Circuit initially reversed the judgment and found in the company’s favor on the retaliation claims, ruling that the challenged actions were not materially adverse. The full Court of Appeals vacated the panel’s decision and affirmed the judgment of the trial court in White’s favor. Burlington sought review by the U.S. Supreme Court.

For years, the Courts of Appeals have been divided over the scope of Title VII’s anti-retaliation provision, reaching different conclusions about what constitutes retaliation. Some courts have held that only retaliation that results in material changes in significant aspects of employment – for example discharge, denial of promotion, or lost compensation – are actionable. Other courts have held that any adverse action that is "reasonably likely" to discourage employees from complaining could give rise to a claim.

In resolving the Circuit split, the Supreme Court in Burlington first looked to the language of the statute itself. Unlike Title VII’s anti-discrimination provision, the anti-retaliation provision makes it unlawful simply "to discriminate against" an employee or applicant because she has opposed an unlawful employment practice, without limiting the scope of protection to actions that affect employment or alter workplace conditions.

The Court then explained that enforcement of Title VII depends on the cooperation of employees who are willing to file complaints and act as witnesses. The Court expressed concern that employers can retaliate against an employee by taking actions that do not involve loss of a job or income and that are not directly related to his or her employment. If Title VII’s anti-retaliation protection were limited only to shielding employees from economic injury or employment-related actions, the Court reasoned, it would not deter the many other forms retaliation might take.

Certainly, not all alleged retaliation is actionable after Burlington. In deciding "how harmful" the retaliation must be in order to give rise to employer liability, the Court held that a plaintiff must show that the challenged action was "materially adverse," meaning that the action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." In reaching this conclusion, the Court reiterated that Title VII does not set forth "a general civility code for the American workplace." An employee’s decision to report discriminatory behavior cannot immunize the employee from the "petty slights, minor annoyances, and simple lack of good manners" that often take place at work and that all employees experience.

After Burlington, actionable retaliation consists of action that (i) is "materially adverse" and (ii) would discourage the "reasonable [worker] in the plaintiff’s position" from complaining. In setting this standard, the Court has established a definition that – although broad – is still objective and rigorous enough to allow courts to screen out claims resulting from less serious workplace grievances. Going further, the Court also noted that "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." As a result, while summary disposition of these claims is undoubtedly possible, whether a particular action constitutes actionable retaliation will be determined on a case-by-case basis. This makes it all the more important that employers respond properly to claims of discrimination.

Following Burlington, employers can expect that any actions they take regarding employees who have voiced complaints about discrimination will face more intense scrutiny. And while the decision is limited to retaliation under Title VII – relating to race, color, religion, sex, or national origin – employers can expect the rationale to extend to retaliation in connection with age and disability claims and to claims under state anti-discrimination laws containing the same language as Title VII’s retaliation provision.

What should employers do to reduce the likelihood of retaliation claims after Burlington?

• Implement and enforce a policy prohibiting any kind of retaliation.

• Take steps to ensure that an employee who complains about discrimination does not suffer adverse consequences that might prompt a retaliation claim. These steps might include:

• Review and document any proposed action regarding employees who have complained about discrimination to confirm that legitimate business reasons exist for the action.

• Determine whether the proposed action regarding a complaining employee is consistent with company policy and with the way other employees have been treated.

• Follow up with any employee who has complained about discriminatory treatment. to keep the employee apprised of the progress of any investigation and to determine whether the employee has been subjected to retaliation in any form.

• Document any follow-up meetings with the complaining employee and any action taken as a result.

• Discipline anyone found to have taken retaliatory action against another employee.

© 2006 Sutherland Asbill & Brennan LLP. All Rights Reserved.

This article is for informational purposes and is not intended to constitute legal advice.