Title VII of the Civil Rights Act of 1964 (the “Act”) prohibits an employer from retaliating against an employee who has “made a charge, testified, assisted or participated in” any charge of unlawful discrimination under the Act.¹ To prove retaliation, a plaintiff has to show, among other elements, that he or she suffered an “adverse employment action.” Until recently, federal courts were split as to the definition of that term. Some courts held, for example, that it had to be an “ultimate employment decision” such as hiring, terminating, promoting or compensating,² while others held that it was any “materially adverse change in the terms and conditions of employment,” such as suspension without pay or demotion.³

On June 22, 2006, the United States Supreme Court resolved this split, issuing a decision which expands the rights of employees under Title VII. In Burlington Northern Santa Fe Railroad Co. v. White,⁴ the Court held that an employer’s actions will be considered an adverse employment action if the conduct “would have been materially adverse to a reasonable employee or job applicant,” and the action could “dissuade a reasonable worker from making or supporting a charge of discrimination.” In addition, the Court expanded the scope of the definition of “adverse employment action” by stating that it “extends beyond workplace-related or employment-related retaliatory acts and harms.” This expansive definition, therefore, could include things that occur beyond everyday interactions in the office, such as vandalism, refusing to provide post-employment information (such as references), or continually calling or driving by an employee’s home for intimidation purposes.

There are, however, two keys phrases in the Court’s new definition that will provide some support for employers. First, the phrase “materially adverse” means that the employee must show something more than a trivial harm. Second, the phrase “reasonable worker” is intended to make this an objective test, which is not dependent on the subjective reaction of the individual employee.

Assessing the Impact of Burlington

The Supreme Court’s decision in Burlington is too recent for anyone to know its exact impact on employers. However, it is likely that three things will happen as a result of the decision:

(1) There will be an increase in the number of retaliation cases. In 2005, retaliation cases made up approximately 25 percent of the docket of the Equal Employment Opportunity Commission. The new relaxed standard is likely to allow for an even greater number of retaliation claims.
(2) There will be an increase in the types of conduct that are considered retaliation because of the new expansive definition of “adverse employment action.”
(3) There will be an increase in the number of cases that must be decided by a jury. The Supreme Court emphasized that it was not in the position to define what specific conduct would be considered “retaliatory.” Instead, the Court noted that the “significance of any given act of retaliation will often depend on the particular circumstances” of a given case. The Court used two examples to demonstrate its point. First, a schedule change may not be significant to some employees, but it could be considered “materially adverse” for a parent with school-aged children whose work availability may be organized around their schedule. Second, a supervisor may not be required to invite employees to go to lunch with him or her, but a supervisor’s refusal to invite some employees while inviting others could be considered “materially adverse” if that lunch were used for training purposes.

What Can Employers Do to Protect Themselves?

To defend against potential retaliation claims, employers can protect themselves by training their supervisors and managers regarding what constitutes retaliation and the prohibition against it. Such training should remind supervisors and managers that unlawful conduct may take many forms and that they must be careful to ensure that all employment- related actions and decisions are based on legitimate, objective business reasons and factors. In addition, company policies should be reviewed to ensure that they contain an explicit provision prohibiting retaliation. If and when a complaint of discrimination or retaliation is made, the company must take immediate steps to investigate and take remedial action if necessary. Finally, and most importantly, employers should tread lightly, and contact counsel, before taking any potentially adverse action against an employee who has in any way opposed an employment practice or otherwise participated in a claim of unlawful discrimination. While the employee certainly is not entitled to preferential treatment for engaging in protected conduct, it is nevertheless important to ensure that he or she is not subjected to retaliation either.

Endnotes