Plaintiffs Claiming Retaliation Under Title VII Have Reduced Burden of Proof

The United States Supreme Court has recently issued a decision regarding claims of retaliation under Title VII that has substantial implications for employers.  In Burlington Northern & Santa Fe Railway Co. v. White, Case No. 05-259 (June 22, 2006), the Supreme Court concluded that Title VII provides victims of retaliation broader protection than that afforded to victims of discrimination. 

Title VII forbids employment discrimination against any individual on the basis of that individual’s race, color, religion, sex or national origin.  Title VII also includes an anti-retaliation provision that prohibits an employer from “discriminating against” an employee or applicant because that individual made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.  As the Supreme Court noted, there has been a split among the Circuit Courts regarding the scope of the anti-retaliation provision, with many (including the Third Circuit) holding that the same standard that applies to a substantive claim of discrimination applies to retaliation – a plaintiff must show “adverse employment action,” which materially altered the terms or conditions of his/her employment.  The Supreme Court disagreed with that approach and held that the anti-retaliation provision of Title VII “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.”  Slip. Op. 1-2.  Instead, the Court held, the standard for claims of retaliation is whether the employer’s actions would be “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”  Slip. Op. 2. 

Burlington Northern involved a claim of retaliation by Sheila White, the only woman in her department, who operated the forklift at the Tennessee Yard of Burlington Northern & Santa Fe Railway Co.  Ms. White complained that her immediate supervisor was sexually harassing her.  The supervisor was disciplined for his conduct, but Ms. White was removed from forklift duty to standard track laborer tasks, a less desirable job assignment.  Ms. White then filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), claiming that the reassignment was unlawful gender discrimination and retaliation for her prior complaint.  Subsequently, Ms. White was suspended without pay for insubordination.  Burlington later found that she had not been insubordinate, reinstated her, and awarded her backpay for the 37 days she was suspended.  Ms. White filed a second charge of retaliation with the EEOC in connection with her suspension.  After exhausting her administrative remedies, White filed an action against Burlington in federal court claiming, that Burlington’s actions in changing her job responsibilities and suspending her for 37 days amounted to unlawful retaliation under Title VII. A jury awarded her compensatory damages.  In affirming, the Sixth Circuit applied the same standard for retaliation that it applies to a substantive discrimination offense, holding that a retaliation plaintiff must show an “adverse employment action.”  The Third Circuit, in Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997), applied the same approach, which limits actionable retaliatory conduct to decisions involving hiring, granting leave, discharge, promotion and compensation.   The Supreme Court invalidated this approach, instead adopting the rationale of the Seventh and D.C. Circuits, that a plaintiff must only show that the employer’s challenged action “would have been material to a reasonable employee.”

Employers within the Third Circuit, i.e., Pennsylvania, New Jersey and Delaware, are now potentially at greater risk for claims of retaliation.  The most effective way to reduce this risk is to promulgate strong anti-retaliation policies and train all supervisors, managers and human resources personnel that individuals who make complaints of unlawful discrimination, or are otherwise involved in an investigation of discrimination, may not be retaliated against in any way for that activity.       

Should you have any questions regarding the specific effect of this case on your business operations, please contact any member of the Firm’s Labor and Employment group.