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Employers Beware: Recent U.S. Supreme Court Decision Adopts Liberal Standard of What Constitutes Retaliation

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February 19, 2007


A female forklift operator complains of inappropriate remarks and is reassigned to strenuous, less desirable duties, albeit within her job description. Is this retaliation under Title VII of the Civil Rights Act of 1964? In a recent case, Burlington Northern & Santa Fe Railway Co. v. Sheila White (126 S.Ct. 2405, June 22, 2006), the U.S. Supreme Court said yes. Adopting a liberal standard under Title VII, the Supreme Court held that actions taken against an employee asserting rights under Title VII amount to unlawful retaliation if the employer's action "could well dissuade a reasonable worker from making or supporting a charge of discrimination." The Court followed the approach of the Equal Employment Opportunity Commission, (EEOC), and settled a split in the circuit courts.

The Civil Rights Act of 1964

Title VII prohibits employers from discriminating based on "race, color, religion, sex, or national origin." It also prohibits employers from retaliating against employees for having "opposed any practice" made unlawful by Title VII or who has "made a charge, testified, assisted or participated in" a Title VII proceeding or investigation.

To prevail on a claim of retaliation, an employee must demonstrate that: the employee engaged in a statutorily-protected activity (e.g. complaining of discrimination); suffered an adverse employment action after engaging in the protected activity; and that the protected activity and adverse employment action were causally connected. Two questions often arise in this analysis: i) Was the adverse action employment related? ii) Was the action adverse enough to amount to retaliation?

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Retaliation Standard Before Burlington Northern:

The EEOC has taken the position that an adverse action need not be termination, refusal to hire, or denial of promotion to be unlawful retaliation. The EEOC has said it is unlawful retaliation if the "adverse treatment… is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC examples include "threats, unjustified negative evaluations, unjustified negative references, or increased surveillance and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights."

Notwithstanding the EEOC position, some courts have held that the retaliation provision in Title VII applies only to retaliation in the form of "ultimate employment actions" such as demotion and termination. Others have construed the provision more broadly to include as unlawful retaliation other adverse actions such as negative reviews, but have required that the action materially affect the terms, conditions or privileges of employment.

Retaliation Standard Under Burlington Northern:

Under Burlington Northern, an adverse action in any circuit has the potential to be unlawful retaliation if taken after an employee engages in a Title VII protected activity and the action "could well dissuade a reasonable worker from making or supporting a charge of discrimination." In Burlington Northern, this meant changing an employee's duties to those less desirable – even though duties for which she was originally hired and which remained in her job description!

Employers must be vigilant in training supervisors not to retaliate after an employee has complained of discrimination. Also, employers must carefully consider any potential change to an employee's position to ensure it could not later be construed as retaliation. This includes the possibility of moving the complaining employee to a different location or job, even if intended to remove him/her from an alleged hostile environment. Even an action with benevolent intentions could later be interpreted as retaliatory if the employee convinces the EEOC or a court that the change affected the employee in a way that "could well dissuade a reasonable worker from making or supporting a charge of discrimination."

Cheryl Deshaies

Cheryl C. Deshaies is an attorney in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A.  Cheryl can be reached at 603-628-1315 or [email protected] The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth. www.mclane.com


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