I heard there is a new United States
Supreme Court ruling that establishes a broad scope of employer liability
for employee retaliation claims. What is this new legal standard?


On June 22, 2006, the United States Supreme Court established this new
legal standard in the case of Burlington Northern and Santa Fe Railway
Co. v. White
. With this decision, the United States Supreme Court has
for the first time defined the scope of employer liability for retaliatory
acts based upon an employee’s complaint of unlawful discrimination
or participation in the complaint process. Prior to this ruling, lower
courts had reached different conclusions about whether the alleged retaliatory
action has to be employment or workplace related, and about how harmful
the action must be to constitute retaliation. California courts have
previously articulated a broad standard in defining what constitutes
retaliatory action. In order to resolve this unsettled area of the law,
the Court addressed these matters in Burlington Northern.

In Burlington Northern, an employee complained to her employer, a railway
company, that her supervisor had sexually harassed her. As a result,
her supervisor was disciplined for sexual harassment; however, the employee
was reassigned from her forklift duties to less desirable track laborer
tasks. Based upon this reassignment of duties, the employee filed a retaliation
complaint against her employer with the Equal Employment Opportunity
Commission (EEOC). Thereafter, the employee was suspended without pay
for 37 days, based upon alleged insubordination. The employer eventually
reinstated the employee after an investigation cleared the employee of
insubordination, and the employee was given back pay for the 37 days
she was suspended. The employee filed another retaliation charge with
the EEOC based on this suspension action. The issue before the United
States Supreme Court was whether the employee’s claim that her
employer had engaged in unlawful retaliation by changing her job responsibilities
and suspending her for 37 days was a violation of Title VII of the Civil
Rights Act of 1964.

Title VII forbids retaliatory actions by an employer against an employee
(or job applicant) because the employee has opposed a practice that Title
VII forbids, or has made a charge, testified, assisted, or participated
in a Title VII investigation, proceeding or hearing. The Court in Burlington
stated that Title VII is not limited to protecting employees
only against retaliatory actions that are employment related, as some
lower courts had previously held. Instead, the Court established a broader
scope of protection for employees, and stated that employees are also
protected under Title VII from retaliatory actions that are not directly
related to employment, or that cause the employee harm outside of the
workplace. The Court provided specific examples of the foregoing: 1)
FBI retaliation against an employee in the form of the FBI’s refusal,
contrary to policy, to investigate death threats by a federal prisoner
against an employee and his wife; and 2) an employer filing false criminal
charges against a former employee who complained about discrimination.

The Court also stated that an employee must show, using an objective
standard, that another individual would have found the alleged retaliatory
action “materially adverse.” This means that the retaliatory
action would have dissuaded a reasonable worker from making or supporting
a charge of discrimination. The Court emphasized that this standard would
screen out trivial conduct (i.e., petty slights, minor annoyances, lack
of good manners) while effectively preventing significantly harmful actions
that are likely to dissuade employees from complaining or assisting in
complaints of discrimination.

Based upon this newly articulated standard, the Court found there was
sufficient evidence to support the employee’s retaliation claim.
The Court determined that the reassignment of the employee’s job
duties could have been materially adverse to a reasonable employee since
the reassigned duties were less desirable. The Court also found that
even though the employer reinstated the employee following her 37-day
suspension and provided her with back pay, the suspension without pay
was materially adverse in and of itself.

In light of this new court ruling, employers should continue to be very
cautious regarding what actions they take regarding an employee who, for
example, has filed a discrimination complaint. This is because Burlington
clearly establishes that employers are potentially liable for
actions that are not directly related to employment, or that cause the
employee harm outside of the workplace.
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