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What is “Materially Adverse to a Reasonable Employee” is Now the Standard for Retaliation Claims.
Julie Y. McLaughlin1
Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259, 2006 U.S. LEXIS 4895, 548 U.S. __ (U.S. June 22, 2006).
A few weeks ago, the Supreme Court decided this case and adopted the standard that a plaintiff must meet to prove retaliation under Title VII. In this case, Sheila White, the only woman working in her department at Burlington, was reassigned from forklift duty to standard track laborer tasks after she complained about her supervisor’s sexist comments. She then filed an EEOC charge claiming that the reassignment was in retaliation for her complaint. Subsequently, White was suspended without pay for thirty seven days for alleged insubordination. She filed another EEOC charge alleging the suspension was also retaliatory. An internal grievance procedure at Burlington revealed that White had not been insubordinate and she was reinstated with back pay.
After exhausting all administrative requirements, White filed suit against Burlington. The jury decided in White’s favor on her retaliation claims. On appeal, the Sixth Circuit, applying the same standard for retaliation that it applied to substantive discrimination claims (i.e. the challenged action must result in an adverse effect on the terms, conditions, or benefits of employment), affirmed the jury’s decision. The Supreme Court granted certiorari, because other circuits applied different standards for retaliation claims. For example, the Fifth and Eighth Circuits employed an “ultimate employment decision” standard, which limited actionable retaliatory conduct to acts such as hiring, discharging, promoting, compensating, and granting leave. The Ninth Circuit required a plaintiff to establish adverse treatment based on a retaliatory motive that is reasonably likely to deter the charging party or others from engaging in protected activity. The Seventh and District of Columbia Circuits required a plaintiff to show that the employer’s challenged action would have been material to a reasonable employee.
In adopting the standard used by the Seventh and District of Columbia Circuits, the Supreme Court first noted that there are important differences between the substantive provision of Title VII and the anti-retaliation provision. The substantive provision explicitly limits its scope to actions that affect employment or alter the conditions of the workplace2 , but the anti-retaliation provision does not contain any of these limiting words2.
The Court noted that these two provisions not only differ in language but they also differ in purpose. The substantive provision seeks to prevent injury to individuals based on who they are (i.e., their status), while the anti-retaliation provision seeks to prevent harm to individuals based on what they do (i.e., their conduct). The Court found that the purpose of these provisions merely reinforces what the language indicates: the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. The Court noted that limiting the anti-retaliation provision to employment-related actions would not deter the many forms retaliation can take, because an employer can retaliate against an employee by taking action not directly related to the employee’s employment (i.e.. file false criminal charges against an employee who complained about discrimination). For these reasons, the Court rejected the standards applied by the Courts of Appeals treating the anti-retaliation provision as forbidding the same conduct prohibited by the substantive anti-discrimination provision and limiting actionable retaliation to so-called “ultimate employment decisions.”
The Court adopted the standard that a plaintiff must show that a reasonable employee would have found the challenged action to be materially adverse. This standard is tied to the challenged retaliatory act and not to the underlying conduct that for
[1]Julie McLaughlin is an associate in the Memphis, Tennessee law firm of Lawrence & Russell, LLP, where she is devoted to litigating employment disputes and ERISA matters on behalf of employers and self-funded employee welfare benefit plans. She can be reached at juliem@lawrencerussell.com.
2 It shall be an unlawful employment practice for an employer - - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individuals with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a) (emphasis added).
3 It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
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