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LJN NewslettersNewsSectionsThe Corporate Counselor

Retaliation Under Title VII

By David L. Gordon
August 31, 2006

What types of employer conduct can constitute retaliation under Title VII? The answer to that question has changed significantly with a recent U.S. Supreme Court decision. On June 22, 2006, the Court issued its decision in Burlington Northern & Santa Fe Railway Co v. White, expanding protections for employees who allege that they have suffered retaliation after making a complaint of discrimination or harassment under Title VII of the Civil Rights Act of 1964. Previously, employees making retaliation claims under Title VII had to prove they suffered an 'ultimate employment decision' or a 'materially adverse change in the terms and conditions of employment,' such as a discharge, demotion or loss of pay, in order to state a claim. Now, the Court has adopted a broader standard, holding Title VII prohibits subtler forms of retaliation, that can even include, depending on the factual circumstances, a change in schedule or the failure to invite an employee to lunch.

Burlington Northern Background

According to the Court, the proper approach for evaluating whether an employer's conduct was retaliatory is determining whether a 'reasonable employee would have found the challenged action materially adverse.' As the Court explained, this means considering whether the employer's alleged retaliatory act 'might have dissuaded a reasonable worker from making or supporting a charge of discrimination.' The Court also found that Title VII's anti-retaliation provision is not limited to actions affecting employment or to those occurring at work, and can extend to actions causing harm outside the workplace. The case has been hailed as a victory by employees' rights groups nationwide. (The opinion is available online at www.supremecourtus.gov/opinions/05pdf/05-259.pdf.)

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