The Supreme Court and the Anti-Retaliation Provisions of Title VII
Dana Rifai*
Last year, Charlize Theron unassumingly portrayed a female mineworker who was discriminated against by her supervisors in “North Country,” a film fictionalizing the account of the first major successful sexual harassment case, Jenson v. Eveleth Mines, tried under Title VII of the Civil Rights Act in 1996. Title VII prohibits employers from discriminating against workers on the basis of certain characteristics such as gender and race. The statute also prevents employers from retaliating against an employee who complains of illegal discrimination. Just recently the United States Supreme Court decided a gender discrimination case in which the court broadened the test for retaliation, making it easier for employees to bring such claims to court.
In Burlington Northern & Santa Fe Railway Co. v. White, 2006 LEXIS 4895, 2006 WL 1698953, decided June 22, 2006, Sheila White, a female forklift operator, complained that a supervisor had repeatedly told her that women should not work in her department and made insulting remarks to her in front of her male colleagues. After an internal investigation, Burlington’s roadmaster took action by suspending White’s supervisor. At the same time, the roadmaster removed White from her forklift duty and reassigned her to perform only standard track laborer tasks which were a more arduous than her forklift operator job. White filed a complaint against Burlington with the Equal Employment Opportunity Commission (EEOC) claiming that the reassignment of her duties amounted to unlawful gender-based discrimination, and she also made a retaliation claim for unlawful employer retaliation against her for having earlier complained about her supervisor’s crude remarks.
A few days later, White disagreed with a different supervisor about work issues. In response to this disagreement, the roadmaster immediately suspended White without pay for 37 days while he invoked an internal investigation. The investigation led Burlington to conclude that White had not been insubordinate and awarded her back pay for the 37 days she was suspended. White then filed a Title VII action against Burlington in which she challenged: (1) Burlington’s changing her job responsibilities, and (2) Burlington’s suspending her for 37 days without pay, claiming both actions amounted to unlawful retaliation. A jury found in White’s favor on both of these claims. Burlington appealed all the way to the Supreme Court.
Some circuits, including the 6 th Circuit through which the Burlington appeal proceeded, have insisted upon a close relationship between the retaliatory action and its employment consequences. Adherence to this standard would make White’s retaliation claims more difficult to prove since she would have to show that Burlington’s action materially changed the terms and conditions of employment. In this case, it was true that White’s employment classification and pay grade had not changed at Burlington. She still had the same job classification, but had been assigned less desirable tasks within that classification. She did receive back pay for the 37 days, but had not been compensated for the emotional distress she suffered during the time she was without work.
The Supreme Court disagreed with the 6 th Circuit’s higher standard, holding that the scope of Title VII’s anti-retaliation provision extends beyond work-place related retaliatory acts and harm. The driving force behind the ruling was the Court’s rationale that Title VII should not be interpreted in a way that might dissuade workers from making a charge of discrimination against their employer. The new standard for a retaliation claim is a plaintiff must show that a “reasonable employee” would have found the challenged action materially adverse, meaning in this context that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. An employer cannot unsuspectingly retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.
Of course the Court did use terms within the standard to filter out trivial claims of retaliation. The court spoke of material adversity to ensure that complaints about the normal trials of the workplace, sporadic use of abusive language, or gender-related jokes and occasional teasing do not make their way to court. The court, also, included the term “reasonable employee” to make the provision’s standard for judging harm objective. Nonetheless, analysts predict the decision is likely to boost the number of retaliation claims being brought.
*Dana Rifai, a 3rd year law student at Valparaiso University, prepared this article during her summer clerkship with Burke Costanza & Cuppy LLP.
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