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Supreme Court Clarifies Retaliation Standard

Posted by Frank Steinberg | Jun 27, 2006 | 0 Comments

Burlington Northern & Santa Fe Railway Co. v. White has become this Supreme Court term's most important employment law decision. It has already drawn considerable comment from the legal blogosphere's early responders, nicely collected by Carolyn Elefant here.

The question that was decided by the court was one that had separated the federal courts of appeals into three camps: what a plaintiff must prove to establish that she was the victim of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964. The specific issues were whether Burlington's actions in (1) changing White's job function and (2) suspending her without pay for 37 days, constituted an unlawful retaliation. The trial court jury held for White and awarded her damages. The Court of Appeals for the Sixth Circuit reversed and found for Burlington Northern.

The Supreme Court sided with the jury.

The Court considered the difference between a substantive claim of discrimination and a related claim of retaliation.

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.

But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.

Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.

The Court took pains to note that the employee who alleges retaliation must suffer an injury or harm. The standard for determining harm is objective (not subjective to the complaining employee):

In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Over time the lower courts will sort out what this standard means in practical application. We'll revisit the retaliation issue over time as the courts put some meat on the bones of this newly clarified standard.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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