The Supreme Court Rules in Favor of Broader Protection for Employees Who Suffer Retaliation When They Complain About Discrimination: Part One

By JOANNA GROSSMAN AND DEBORAH BRAKE

Friday, Jul. 07, 2006

This is Part One of a two-part series by the authors on this important Supreme Court end-of-Term antidiscrimination/retaliation decision. - Ed.

On June 22, the Supreme Court issued an important decision interpreting Title VII of the Civil Rights Act of 1964, a key federal antidiscrimination statute. Title VII bans not only discrimination on the basis of protected characteristics like race and sex, but also retaliation against those who assert their rights against discrimination.

The two main questions for the Court in Burlington Northern & Santa Fe Railway Company were: Must a retaliatory act be work-related in order to violate Title VII? And, when is retaliation serious enough to be actionable?

The Supreme Court, in a majority opinion authored by Justice Breyer and joined by all but one justice, answered these questions with a new test that has the potential to provide employees with robust protection against retaliation. (Justice Alito concurred in the judgment, but refused to join the opinion because he felt the newly adopted test was too broad.)

Whether the test's potential is realized, however, will depend on whether lower courts, in applying it, take into account the ways in which employees experience retaliation at work, and the lengths to which employees will go to avoid such consequences.

Sheila White: A Woman in a Man's World

Here are the facts of the case that came before the Court: Sheila White, a woman with experience operating forklifts, applied for a job in the "Maintenance of Way" department of Burlington Northern & Santa Fe Railway Company. The roadmaster, Marvin Brown, hired White as a "track laborer," a job that included everything from removing litter to replacing track components.

Soon after White was hired, a more skilled, more desirable position -- operating the forklift -- became available. Brown immediately assigned her to it.

White's immediate supervisor, Bill Joiner, however, told her that women should not be working in the Maintenance of Way department. She complained, and he was suspended -- for that, and for other insults and inappropriate remarks directed at White. The suspension made sense, for his hostile behavior was of the type that can contribute to an unlawful, sex-based hostile environment, which violates Title VII.

According to the jury's findings, White suffered retaliation for complaining about Joiner's behavior: She was removed from forklift duty and restricted to track laborer tasks.

When informing her of the reassignment, Brown told her that a "more senior man" should have the "less arduous and cleaner job" of forklift operator.

Faced with more evidence of sex discrimination, White complained again -- this time to the Equal Employment Opportunity Commission (EEOC) - alleging that her reassignment was retaliation for her earlier complaint.

Shortly after White filed this second complaint, another supervisor reported that White had been insubordinate during a dispute about the proper location of a truck. White was suspended without pay for 37 days, supposedly because of the insubordination, though she was ultimately reinstated when the company concluded during an internal grievance procedure that she had not, in fact, been insubordinate.

The jury found that White had once again suffered retaliation for complaining about discrimination - hidden by the flimsy pretext of her supposed insubordination.

What Constitutes Unlawful Retaliation? Two Key Questions

The question in White's case is whether the retaliation she suffered was sufficient to constitute a violation of Title VII. The statute's anti-retaliation provision prohibits employers from taking actions that "discriminate against" an employee or applicant because she has "opposed" a practice made unlawful by Title VII's anti-discrimination provisions.

When does retaliation "discriminate against" an employee? Again, that depends on how one interprets Title VII's anti-retaliation provision with respect to those two crucial issues: (1) whether the retaliatory action has to be workplace-related and (2) how serious the retaliatory action must be in order to be actionable.

The First Question: Must the Retaliation Be Work-Related?

The U.S. Court of Appeals for the Sixth Circuit had ruled in this case that a plaintiff must show an "adverse employment action" in order to prove retaliation. In earlier cases, the Fifth and Eighth Circuits had adopted an even stricter version of this standard, requiring that a retaliatory act constitute an "ultimate" employment action -- such as demotion, firing, or change in compensation - in order to be actionable.

Under both versions of this standard, only work-related retaliatory acts could be held to run afoul of Title VII. So, for example, if a supervisor phoned in a death threat to an employee at home after she complained about his sexist behavior at work, the employee would not have an actionable claim of retaliation even if the supervisor's underlying conduct violated Title VII, there was clear evidence of a causal relationship between the complaint and the threat, and a similar threat would deter any employee from filing a complaint of retaliation. It's hard to believe Congress would have wanted to leave this kind of retaliation out of Title VII's purview since such behavior could seriously undermine enforcement of the statute's antidiscrimination provisions.

Fortunately, the U.S. Courts of Appeals for the Seventh, Ninth, and D.C. Circuits took a broader view of what kind of retaliation is illegal under Title VII. They all held that retaliation need not be work-related as long as it is sufficient to dissuade a reasonable employee from complaining about discrimination.

The Supreme Court in Burlington Northern took the broader view as well, holding that the "scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." This broad protection, the Court explained, would help "assure the cooperation upon which accomplishment of the Act's primary objective [to prevent employment discrimination] depends."

The Court was right to reach the holding it did. (Note that the question of work-relatedness should not have been much of an issue in White's case. The suspension without pay was clearly work-related and any harm resulting from the loss of income was arguably work-related as well.) Employees who fear non-workplace-retaliation are just as unlikely to complain or cooperate with an internal investigation as employees who fear workplace retaliation. The retaliation provision, thus, must be broad enough to provide employees with meaningful protection.

The Second Question: How Bad Does the Retaliation Have To Be?

The second question, more relevant for White's suit, relates to the proper legal standard for retaliatory acts: How bad do they have to be before Title VII is violated?

Again, federal appellate courts disagreed with each other; though they all agreed that retaliation must produce some injury or harm in order to come under Title VII, they articulated different standards for harm. The Supreme Court in Burlington Northern adopted the formulation set forth by the U.S. Courts of Appeals for the Seventh and D.C. Circuits: "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." (Emphases added.)

According to the Supreme Court, this standard, by requiring that the retaliatory act be "materially adverse," will "separate significant from trivial harms." Also, by using a "reasonable employee" as the reference point, it will avoid "the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings."

In addition, this standard rightly leaves the way open for claims that coworker harassment that is tolerated, condoned, or encouraged by management is "materially adverse" enough to come under Title VII. Lower courts have split over whether co-worker harassment, however egregious and flagrant, can ever be considered unlawful retaliation under Title VII. But misbehavior by co-workers can be just as chilling to victimized employees as that of their supervisors, and the law needs to sweep broadly to protect an employee's right against retaliation.

Applying the newly articulated standard to White's case, the Supreme Court upheld the original jury verdict in her favor. On the first question, the company did not appeal the jury's finding that the actions taken against her were in retaliation for her complaints, and the Court made clear it didn't matter whether or not the actions were work-related. On the second question, the Supreme Court deemed a suspension without pay for more than a month and reassignment to a less desirable position sufficiently adverse to satisfy its materiality standard.

The Supreme Court's new test for retaliation preserved Sheila White's victory against her employer, vindicating her right to work in a man's world without punishment. But will the test, on balance, be effective in combating retaliation more generally? That depends on whether lower courts take into account the ways in which retaliation occurs in the actual workplace and the impact it has on real victims.

Part Two of this series of columns will use available social science data about retaliation to argue that if courts simply make blind assumptions about the kinds of conduct that "might well" deter a discrimination victim from filing a complaint, they will undermine the law's ability to deter and remedy retaliation.

The second installment will also discuss Justice Alito's departure from the majority's reasoning in this case and the worrisome implications of the more stringent approach he urged.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site. Deborah Brake is a professor of law at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. She recently published an article entitled "Retaliation" in the University of Minnesota Law Review.

Deborah Brake is a professor of law at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. She recently published an article entitled "Retaliation" in the University of Minnesota Law Review.

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