David T. Wiley

Client Bulletin #364

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.

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