July 10, 2006
The U.S. Supreme Court this week expanded what constitutes an unlawful act of retaliation in the Title VII context. In a 9-0 decision, the court defined “retaliation” as encompassing employer activities “materially adverse” to a “reasonable employee.” The court emphasized the higher level of subjectivity by adding that “the significance of any given act of retaliation will often depend upon the particular circumstances,” as well as the guidance that “[c]ontext counts.” Burlington Northern and Santa Fe Railway Co. v. White, No. 05-259, 2006 U.S. LEXIS 4895 (June 22, 2006).
Employee was a forklift operator and employer’s first female employee in its Memphis, Tenn. location. In September 1997, she complained to management about sexual harassment from her foreman. Employer disciplined the foreman, then transferred employee to the more physically demanding track laborer position even though at the time, there was only one other qualified forklift operator, and that person was working in a different, higher paying capacity. Employee filed an EEOC charge for gender discrimination and retaliation, and a second charge immediately thereafter for surveillance. Employee was subsequently suspended from work for an alleged insubordination incident that an internal grievance procedure later determined to be unfounded. She was reinstated and received back pay. The District Court ruled in favor of employee on her retaliation claim. The 6th Circuit ultimately reviewed en banc and affirmed.
The Supreme Court subsequently affirmed the 6th Circuit, settling a circuit split on the question of what constitutes “retaliation.” The court advised that to be “materially adverse” an employer’s action must be one that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying the reasoning to the facts of the case, the court focused on employee’s job transfer, which involved new duties that were more difficult, regardless of whether there were any changes in pay or benefits, and employee’s suspension, even though back pay was ultimately awarded. The court reasoned that since those two actions would have dissuaded a reasonable employee from asserting an action, they constituted retaliation under the new standard. Employer was therefore liable.
Justice Alito, concurring in the judgment but not the court’s reasoning, noted that the new standard could produce “topsy turvy” results. Justice Alito noted that employees who suffered the most grievous discrimination would generally be less likely to be dissuaded from pursuing their claims, while those victims of more minor discrimination would be more easily dissuaded. Nevertheless, as a result of this decision, employers must now be even more mindful of the actions they take when dealing with employees who have made discrimination complaints.