Supreme Court Adopts Liberal Retaliation Standard

Volume 5, Issue 8
June 22, 2006

On June 22, 2006, in the case of Burlington Northern & Santa Fe Railway Co. v. White, the United States Supreme Court addressed the dispute among the Circuit Courts as to what actions are sufficiently "adverse" to render an employer liable for retaliation. While the Court did not adopt the extremely liberal standard of the Ninth Circuit Court, it concluded that Title VII's anti-retaliation provision requires an action to be "materially adverse" to a reasonable employee but does not require that the retaliatory act occur in the workplace or be employment-related.

The plaintiff, Sheila White, was hired as a track laborer and primarily operated a forklift. She complained that her immediate supervisor had made inappropriate remarks about women, including repeatedly telling her that women should not be working in her department. The supervisor was disciplined for his remarks. White was then removed from her forklift duties and assigned to perform only standard track laborer tasks because of complaints by colleagues that "a more senior man" should have the forklift job which was "cleaner" and "less arduous." After filing a charge of discrimination, White was suspended without pay for 37 days for insubordination due to a disagreement with her supervisor; she grieved the suspension, was found not to have been insubordinate, and was reinstated with back pay. White filed a lawsuit alleging that the reassignment of her duties and the suspension were retaliatory, and a jury found in her favor. On appeal, the jury award was upheld.

The Supreme Court agreed to hear the case due to a disagreement among the Circuit Courts as to whether an alleged retaliatory action has to be employment-related and how harmful that action must be to constitute retaliation. The Ninth Circuit Court held in Ray v. Henderson that a plaintiff must simply show that she suffered adverse treatment which is reasonably likely to deter her or others from engaging in protected activity. Other Circuits have been much more restrictive; some limit retaliation to "ultimate employment decisions" such as hiring, firing, promoting, and compensating, and others require a materially adverse change to terms and conditions of employment.

While the Supreme Court did not adopt the Ninth Circuit Court's holding, it fashioned a standard which broadly applies the anti-retaliation provision of Title VII. First, the Court held that the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts. For example, an employer's decision to file criminal charges against an employee because of the employee's protected conduct would be sufficient to form the basis of a retaliation claim.

Second, the Court held that the anti-retaliation provision applies to those employer actions that would have been materially adverse to a "reasonable" employee. An employee must show that the challenged action would have dissuaded a reasonable worker from complaining or supporting a complaint. The Court explained that material adversity would ensure that trivial harms, such as petty slights, minor annoyances, or the lack of good manners, would not constitute retaliation. The Court further found that requiring objectivity - that a reasonable employee would have been dissuaded from complaining - would avoid the problem of a particular individual's unusual subjective feelings. For example, while the mere refusal to invite an employee to lunch would likely be trivial, excluding an employee from a training lunch that contributes to that employee's professional advancement might be actionable.

The Court concluded as to White that the reassignment of her duties at issue constituted a sufficiently adverse employment action because in her workplace the forklift duties were easier and considered more prestigious. Additionally, the Court concluded that the suspension itself was an adverse employment action, even though White was reinstated with full back pay.

The Supreme Court's ruling is significant for Nevada employers because it supplants Ray v. Henderson which allowed a plaintiff to prove retaliation based upon her own subjective reaction to the conduct at issue. The Supreme Court's holding removes from consideration the employee's subjective feelings about the action taken and requires a court to consider the issue only from the perspective of a reasonable employee. Moreover, the decision requires a plaintiff to show that an action was materially adverse and not merely trivial. Certainly, the focus in retaliation claims will now be on whether conduct is sufficiently material and whether it would deter a reasonable employee from complaining.

The Supreme Court's decision can be found at:

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