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Employers Beware: What the Supreme Court’s Employee-Friendly Decision on Retaliation Means and What Employers Should Do About It

Lerch, Early & Brewer's Legal Update

In a recent decision which should command the attention of employers everywhere, Burlington Northern and Santa Fe Railway Company v. White, the Supreme Court has adopted a broad, employee-friendly definition of retaliation under Title VII of the Civil Rights Act of 1964. This article will examine what the Court found and what employers should do to safeguard against retaliation claims.

To begin, we will look at the facts of the case in question to understand how the Court arrived at its decision. The case involved a lawsuit filed by a female employee, who was hired to operate a forklift for a railroad company. She complained to company officials several months after she was hired that she was being harassed by her foreman. In response, the company disciplined the foreman and transferred her to a job that was far more strenuous. She filed a charge alleging sex discrimination retaliation, and shortly thereafter filed a second charge claiming that the company’s road master had placed her under surveillance. Subsequently, the company suspended her without pay for alleged insubordination. She filed a grievance and was reinstated with full pay after missing 37 days of work. A jury found in favor of the railroad on her sex discrimination claim, but in her favor on the retaliation claim.

Eventually, the case was appealed to the Supreme Court, which examined (i) whether the anti-retaliation provision of Title VII forbids only those employer actions that result in harms that are related to employment in the workplace, and (ii) how harmful an act of retaliation must be in order to fall within the scope of the provision.

Retaliation Not Limited to Employment-Related Actions

With respect to the first issue, the Supreme Court found that the anti-retaliation provision is not limited strictly to actions relating to employment because employers can discourage the reporting of discrimination in other ways. In explaining this, the Court stated that the “substantive” provision of Title VII seeks to prevent injury to individuals based on who they are, whereas the anti-retaliation provision seeks to prevent harm to individuals based upon what they do. As such, the Court found that limiting the anti-retaliation provision to employment-related actions would not deter many of the forms that effective retaliation can take.

How Harmful is the Retaliation?

The Court then considered how harmful the retaliation must be. It held that a plaintiff must show that a reasonable employee would have found the retaliation “materially adverse”, which means that it very well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. An employee’s decision to report discriminatory behavior cannot immunize that employee from the petty slights or minor annoyances that often take place at work and that all employees experience. Thus, whether an act rises to the level of “prohibited retaliation” depends upon the facts, circumstances and context. For example, the Court explained that a change in an employee’s work schedule might make little difference to many workers, but might have an enormous impact upon a young mother with school age children.

In this case, the Court rejected the company’s argument that a reassignment of duties, where both the former and present duties fall within the same job description, cannot constitute retaliatory discrimination, an argument often made by employers in response to retaliation cases. Instead, the Court explained that whether a particular reassignment is harmful enough to constitute retaliation depends upon the circumstances of the particular case and should be judged through the eyes of a reasonable person in the plaintiff’s position. The Court also rejected the company’s argument that because the employee was reinstated with pay, she had not been harmed under Title VII. It
explained that an indefinite suspension could act as a deterrent to filing a retaliation claim even if the suspended employee eventually received back pay.

How to Be Proactive in Preventing and Addressing Employment Issues

As a result of this decision, it is more important than ever for employers to be proactive in their approach to preventing and addressing employment issues in the workplace. Measures which employers should take include the following:

  1. Review personnel policies and procedures to make sure that they are clear and legally sufficient, and also monitor them to make sure that they are consistently applied.
  2. Train managers on how to interview legally and effectively.
  3. Monitor the performance of employees as soon as they are hired and train managers on the importance of documenting performance issues as they occur.
  4. Where possible, make sure that adverse employment decisions, including termination, reduction in pay or benefits, and reassignment are evaluated by the human resources department or a central individual before being implemented.
  5. Conduct anti-harassment and anti-discrimination training regularly for all employees.
  6. Involve counsel, particularly where there are mitigating or troubling factors which could result in the filing of a retaliation claim.

In conclusion, employers should assume that the rationale of the Supreme Court’s decision here will be applied to the anti-retaliation provisions of other discrimination statutes. Employers who commit to consistent and effective training and, more broadly, to a proactive approach to personnel problems will be best positioned to prevent retaliation claims in the first instance, and to prevail if such claims are later filed.

Marc R. Engel is a principal in the firm’s Employment and Labor Group. He can be reached at (301) 657-0184, or via e-mail at


This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.


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