On June 22, 2006, a unanimous Supreme Court substantially expanded the scope of legal protection from retaliation under Title VII of the Civil Rights Act. Title VII forbids employment discrimination against “any individual” based on that individual's “race, color, religion, sex, or national origin.” A separate section of the act—its anti-retaliation provision—forbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation.

The federal courts of appeals have come to different conclusions about the scope of the act’s anti-retaliation provision, particularly the reach of its phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?

In Burlington Northern and Santa Fe Ry. Co. v. White, No. 200904759 (U.S. June 22, 2006), the Supreme Court concluded that “the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” It also concluded that “the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant.” In other words, that means that “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.”

The case arose out of actions that supervisors at B urlington Northern & Santa Fe Railway Company took against Sheila White, the only woman working in the Maintenance of Way Department at Burlington's Tennessee Yard. In June 1997, Burlington hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, she was assigned to operate a forklift. While she also performed some of the other track laborer tasks, operating the forklift was White's primary responsibility.

In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session. In late September, Burlington officials informed White about Joiner's discipline. At the same time, White was removed from her forklift duty and assigned to perform only standard track laborer tasks. Burlington officials testified that White’s duties were changed in response to co-workers’ complaints that, a “’more senior man’” should have the “less arduous and cleaner job” of forklift operator.

White filed a complaint with the Equal Employment Opportunity Commission, claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. Subsequently, after a disagreement with another supervisor, White was suspended without pay for insubordination. In response, White invoked the company’s internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her back pay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

After exhausting administrative remedies, White filed a Title VII action against Burlington in federal court, claiming that Burlington's actions—(1) changing her job responsibilities, and (2) suspending her for 37 days without pay—amounted to unlawful retaliation in violation of Title VII. A jury found in White's favor on both of these claims.

On appeal, the Sixth Circuit affirmed the lower court’s judgment in White's favor on both retaliation claims, applying the same standard for retaliation that it applies to a substantive discrimination offense. Specifically, the Sixth Circuit held a retaliation plaintiff must show an “adverse employment action” defined as a “materially adverse change in the terms and conditions of employment.” Other circuits, e.g., the District of Columbia and the Seventh Circuits, have held that a retaliation plaintiff need only show that a challenged action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” a standard that does not require adverse actions to be employment or workplace related. The Supreme Court agreed to review the case to resolve this disagreement.

The court chose the latter, more expansive standard for application to retaliation claims, concluding that Title VII’s “anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” In so ruling, the court distinguished between Title VII’s substantive anti-discrimination provision and the act’s anti-retaliation provision. According to the court, “[t]he anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.”

The court further observed that “[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. A provision limited to employment-related actions would not deter the many forms that effective retaliation can take.” For these reasons, the court concluded that “Title VII's substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”

At the same time, the court sought to limit potential recovery for retaliation claims. It held that “[t]he anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” According to the court, “[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” However, the court cautioned that the standard must also be applied in consideration of the particular circumstances from the perspective of a reasonable person in the plaintiff’s position. As the court explained, “[a] schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.” Thus, an action that may be immaterial in some situations may be considered material in others.

Applying this standard to the facts of this case, the court believed that there was a sufficient evidentiary basis to support the jury's verdict on White's retaliation claims. Rejecting Burlington’s argument that the reassignment from forklift duty to standard track labor tasks was not material, the court noted that “[a]lmost every job category involves some responsibilities and duties that are less desirable than others.” In particular, the court pointed to evidence that the track labor duties were “by all accounts more arduous and dirtier”; that the “forklift operator position required more qualifications, which is an indication of prestige”; and that “the forklift operator position was objectively considered a better job and the male employees resented White for occupying it.” The court held that based on this record, “a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee.” The court also rejected Burlington’s argument that the 37-day suspension without pay lacked statutory significance because Burlington ultimately reinstated White with back pay. The court observed that although White received back pay, she and her family had to live for 37 days without income or any assurance that she could return to work. The court, therefore, concluded that “an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.”

The Burlington case may result in an increase in retaliation claims filed by Title VII plaintiffs. For this reason, employers must make sure that when dealing with employees who have opposed alleged discrimination or participated in an EEOC proceeding, any arguably adverse actions taken against the employee are supported by legitimate reasons and are not retaliatory.