Client
Bulletin #364
Supreme Court Defines Retaliation -
and It's Adverse to Employers
By David
T. Wiley
Birmingham,
Alabama
June 23, 2006
On June 22, 2006, the U.S. Supreme Court handed down its opinion
in what was the most anxiously-awaited employment law decision
of its current term and undoubtedly became the most significant
in terms of its potential impact on employers.
In a near-unanimous decision, the Supreme Court established a substantially different
standard for addressing claims under the “retaliation” provision
of Title VII of the Civil Rights Act of 1964 (and, presumably, the retaliation
provisions of similar federal anti-discrimination statutes).
In Burlington
Northern & Santa Fe Railway Co. v. White, plaintiff-employee
White alleged that in retaliation for complaining of sexual harassment, she had
been transferred to a less desirable job and had been suspended without pay for
37 days while she was investigated for allegedly insubordinate conduct. Although
the company eventually resolved the investigation in her favor and paid her for
the missed time, she claimed that having the pay withheld for more than a month
nevertheless amounted to actionable retaliation.
A jury found in White’s favor, but a panel of the Court of Appeals for
the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) reversed the verdict,
concluding that neither the transfer nor the delayed pay amounted to actionable
adverse employment actions. The case was reheard before the full Sixth
Circuit, which agreed with the District Court. The Supreme Court affirmed the
full Court of Appeals, albeit not the Sixth Circuit's analysis, reinstating the
verdict in favor of White.
First, the Court held that the “retaliation” provision of Title VII
is more expansive in its protection than the companion “discrimination” provision
of the Act. Specifically, the Court held that while the discrimination
provision addresses only actions that affect an individual’s employment
or alter his workplace conditions, the retaliation provision may
also include actions not directly related to the workplace. As examples,
the Court cited a case in which the FBI retaliated against an agent by refusing
to investigate death threats made by a federal prisoner against the agent and
his wife, and another case in which the employer filed false criminal charges
against a former employee who had complained of discrimination. Rejecting
the view of some lower courts of appeal that the retaliation provision applied
only to workplace-related conduct, the Court noted that “such a limited
construction would fail to fully achieve the anti-retaliation provision’s
primary purpose, namely, maintaining unfettered access to statutory remedial
mechanisms.”
As a result of this expanded view, the Court also rejected the concept, previously
adopted by some lower courts of appeal, that the retaliation provision applies
only to “ultimate” employment actions such as hiring, firing, failure
to promote, etc. Instead, the Court adopted a considerably more flexible,
and thus more amorphous, standard requiring only that “a reasonable
employee would have found the challenged action adverse, which [] means
it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Based on this standard, the
Court concluded that White’s transfer, while involving the same pay and
benefits, was considered a “lesser” job by even the company itself
and that the delay in her pay, particularly given that it occurred at Christmas,
was significant enough to reasonably have been deemed adverse by the jury.
The Court made it clear that the trial courts still have the responsibility
to weed out claims of retaliation based on “petty slights, minor annoyances,
and simple lack of good manners.” However, there is no doubt that
the Burlington
Northern decision, although employing an objective, “reasonable
person” standard, can be expected to result in more employee complaints
of retaliation and the potential for such claims to make it to a jury.
For further analysis of Burlington
Northern and its practical implications for employers, look for an article
in a future edition of Constangy’s Labor & Employment Insights. If
you have any questions or concerns in the meantime, contact any member of Constangy’s Litigation
Practice Group or the Constangy attorney of your choice.
Constangy, Brooks & Smith, LLC has counseled employers, exclusively,
on labor and employment law matters since 1946. The firm represents Fortune 500
corporations and small companies across the country. More than 100 lawyers work
with clients to provide cost-effective legal services and sound preventive advice
to enhance the employer-employee relationship. Offices are located in Georgia,
South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri,
and Texas. For more information about the firm's labor and employment services,
visit www.constangy.com, or call toll free at 866-843-9555.
