Supreme Court Decision Defining Retaliation Print

The United States Supreme Court issued a decision on June 22, 2006 that will have a dramatic impact for employers with respect to retaliation claims.  For many employers, charges of discrimination on the basis of some protected class are often easily refuted by objective evidence and analysis.  Many times, however, the employer runs into more trouble through retaliation claims than with the underlying discrimination itself.  Burlington Northern & Santa Fe Railway Co. v. White provides cogent analysis regarding what is required for a valid retaliation claim. 

Title VII of the Civil Rights Act forbids employment discrimination based on a protected class (race, sex, religion, etc.).  The Act also contains an anti-retaliation provision that forbids an employer from retaliating against an employee who opposes any practice prohibited by Title VII.  In Burlington Northern, the employee complained of sexual harassment.  The supervisor was disciplined, but the employee was also removed from her regular duties and provided with standard laborer tasks in addition to non-work related reprisals.  The employee filed a complaint with the EEOC for retaliation.

In this case, the Supreme Court sought to clarify what “retaliation” means; specifically, what qualifies as “discrimination” in the context of a retaliation claim.  The Court determined that the anti-retaliation provision should not be limited solely to those actions occurring at the workplace or related to employment.  Essentially, the Court held that while under Title VII discrimination must be workplace related, the Title VII anti retaliation provision “extends beyond workplace-related or employment related retaliatory acts and harm.”  In addition, the Court held that a retaliation claim must involve actions that are “materially adverse” to an employee or applicant.  The Court was quick to note that context determines the “materiality” of the harm.  As an example, a shift change which “may make little difference to many workers [ ] may matter enormously to a mother with small children,” and could therefore constitute retaliation in the latter instance but not the former.

This decision should underscore for employers the need to take affirmative steps to ensure that employees are not retaliated against for making a discrimination claim.  The Court said “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.”  Relying purely on the fact that there is no adverse employment action is not enough.  Retaliation claims based on subtle reprisals, including shift changes or outside of work harassment, are now covered by Title VII anti-retaliation provisions as well. 

You may view a complete copy of this decision at:

Feel free to contact any of the TMF attorneys to discuss this or any other legal matter.

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