Retaliation Under Title VII

In Burlington Northern, the plaintiff was employed as a railroad track laborer. She was the only female in her department, and she was responsible for removing and replacing track components, transporting track material, cutting brush and clearing litter and spillage from the right of way.

Shortly after the plaintiff's hire, a forklift operator position became available, and the plaintiff was reassigned to that position. After her reassignment, the plaintiff complained that her supervisor sexually harassed her. The company investigated the complaint and suspended the supervisor, ordering him to attend sexual harassment training sessions.

Soon thereafter, a company official advised the plaintiff that during the sexual harassment investigation, the company had received several complaints from other employees about her assignment to the forklift position. The complaints did not relate to the plaintiff's performance, but to the fact the forklift was a less arduous and 'cleaner' job than other track-laborer positions. Employees believed a 'more senior man' should have the position, not a junior-level employee like the plaintiff. As a result of the complaints, the company removed the plaintiff from the forklift position and assigned her to a standard track-laborer position. Her pay and benefits, however, remained the same. The plaintiff was eventually suspended for alleged insubordination, but was reinstated with full back pay after she filed a grievance.

The plaintiff filed a lawsuit alleging the change in her job duties and work suspension without pay for insubordination had constituted unlawful retaliation, even though she was reinstated 37 days after her suspension with full back pay. A jury awarded her $43,500 in compensatory damages. When the employer appealed, the United States Court of Appeals for the Sixth Circuit upheld the jury verdict, but differed as to the appropriate legal standard to apply in determining whether retaliation had occurred ' an issue that also had divided the various appellate courts. The U.S. Supreme Court granted certiorari to resolve the differences in the circuit courts regarding the proper standard for a retaliation claim.

On appeal, the employer argued that the anti-retaliation provision of Title VII should be limited to prohibit retaliatory conduct by employers that affects the employee's compensation, terms, conditions or privileges of employment. The employer noted that Title VII's anti-discrimination provision protects individuals only from employment-related discrimination and urged the Court to read the anti-discrimination and retaliation provisions to mean the same thing.

The High Court's Ruling

The Court rejected the employer's argument. The Court noted that Title VII's anti-discrimination provision and retaliation provision differ significantly. In reaching its decision, the Court analyzed the express statutory language prohibiting discriminatory and retaliatory conduct. The Court noted that while the anti-discrimination provision of Title VII specifically prohibits actions 'with respect to compensation, terms, conditions or privileges of employment,' the anti-retaliation provision does not contain such an express limitation. Rather, the anti-retaliation provision merely prohibits 'discrimination' against those who oppose a practice forbidden by Title VII or participate in a Title VII proceeding. The Court held that this distinction evinced Congress' purpose of prohibiting employers from 'interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.' The Court concluded that a broad reading of the anti-retaliation provision is necessary, since an 'employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.'

The Court also found that the two provisions serve different purposes and should therefore be interpreted differently. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their race, ethnicity, gender or religion. The anti-retaliation provision seeks to prevent employers from interfering with an employee's efforts to secure Title VII's guarantees. The Court noted that this objective could not be secured by focusing only on workplace-related conduct. It concluded that the anti-retaliation provision 'extends beyond workplace-related or employment-related harm.'

Determining Retaliation

The Court then set forth the proper standard for determining whether an alleged action by an employer constituted unlawful retaliation. It held that a plaintiff must show that a 'reasonable employee would have found the challenged action materially adverse.' The employer's conduct must dissuade 'a reasonable worker from making or supporting a charge of discrimination.' The Court emphasized that this standard is objective; an individual employee's 'unusual subjective feelings' are irrelevant to the analysis. Reiterating that Title VII is not a general workplace civility code, the Court stated that a plaintiff must demonstrate that the alleged harm is significant. Whether an action is materially adverse will depend on the circumstances of a particular case and should be judged from the perspective of a reasonable person in plaintiff's position. Simply put, 'context matters.'

Adverse Examples

To illustrate the application of its standard, the Court gave two examples; one involving a schedule change, and the other a refusal to invite an employee to lunch, an issue discussed heavily during oral argument. A schedule change might not matter to most employees, the Court explained, but it 'may matter enormously to a young mother with school age children.' Likewise, a supervisor's refusal to invite an employee to lunch is 'normally trivial, a nonactionable petty slight.' However, excluding an employee from a 'weekly training lunch that contributes significantly to the employee's professional advancement' might well deter a reasonable employee from complaining. Depending on the circumstances, a reasonable employee might consider these actions materially adverse.

Applying this standard to the specific facts before the Court in Burlington Northern ' whether a reassignment of duties within the same job description and/or a 37-day unpaid suspension which was followed by reinstatement and full back pay, constituted actionable retaliatory conduct ' the Court held that each action could be the basis for a retaliation claim. Regarding the reassignment of job duties, the Court stated that while reassignment is not automatically actionable, in this case, there was evidence that the track-labor duties were more arduous, and that the forklift operator position was more prestigious. For that reason, reassignment would have been materially adverse to a reasonable employee. As to the suspension, the Court held that it was actionable because a 'suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.' The Court noted that '[m]any reasonable employees would find a month without a paycheck to be a serious hardship.' The Court noted in particular the plaintiff's testimony that going without her normal compensation during her suspension resulted in the 'worst Christmas [she] had out of [her] life' and that she became depressed, which resulted in her obtaining medical treatment for emotional distress.

The Aftermath

Since the Supreme Court issued its decision in Burlington Northern, several lower courts have relied on the decision to determine whether certain employer conduct amounted to retaliation. In one recent case, a court denied summary judgment to the employer on an employee's retaliation claim under facts similar to those in Burlington Northern. Rizzo v. Niagra Mohawk Power Co., Case No. 1:04CV1507 (S.D.N.Y. June 22, 2006). In Rizzo, the plaintiff alleged that her employer retaliated against her after she complained of sexual harassment. One example of retaliation alleged by the plaintiff was her assignment to clean a particular piece of equipment, one of the more difficult jobs in the plaintiff's department. Though the plaintiff admitted that other employees also were assigned this task, she alleged she was assigned the task more often and was denied assistance in cleaning. The court held this evidence of the employer's conduct was sufficient to proceed to trial on her claim of retaliation.

At least one court has held that initiation of a formal disciplinary investigation ' even one that did not result in formal discipline ' constituted conduct sufficient to at least establish a prima facie case of retaliation. Doucet v. Univ. of Cincinnati, Case No. 1:05CV148 (S.D. Ohio July 19, 2006). In Doucet, the plaintiff alleged that she had been denied faculty re-appointment at the University's fashion and design school because of her French national origin. During her dispute over reappointment, the plaintiff became involved in another dispute over her fall course assignments. A few months later, the University instituted academic disciplinary proceedings against the plaintiff, alleging she was not teaching the assigned course content. The court, however, went on to grant the University's motion for summary judgment on other grounds.

In a similar vein, another court concluded that a threatened disciplinary action, a formal disciplinary notice and a poor performance evaluation constituted 'materially adverse actions that ' support a claim of retaliation,' and denied the employer's motion to dismiss the employee's retaliation claim. Browne v. Potomac Elec. Power Co., Case No. 1:05CV1177 (D.D.C. July 3, 2006). In contrast, another court granted an employer's motion for summary judgment, concluding that requesting that an employee meet with his superiors and presenting the employee with a 'last chance agreement' was insufficient to support a claim for retaliation under Title VII. Molina v. Equistar Chems., L.P., Case No. 2:05CV327 (S.D. Tex. June 30, 2006).

Examining alleged retaliatory conduct outside the workplace, another court permitted an employee to amend her complaint to allege a retaliation claim based on the employee's discovery from her doctor that her employer had interfered with her request for disability benefits. Howard v. Gutierrez, Case No. 1:04CV756 (D.D.C. July 10, 2006). The employer argued that it would be futile for the plaintiff to amend her complaint because she had not alleged any retaliatory actions that would materially affect her terms, conditions or privileges of employment. The court rejected the employer's argument in light of Burlington Northern, holding that the conduct alleged by the plaintiff might dissuade a reasonable employee from making or supporting a charge of discrimination.

Commentary

According to the EEOC, approximately 26% of all charges filed in 2005 involved retaliation claims. That percentage can only be expected to increase after Burlington Northern. The broad nature of the U.S. Supreme Court's standard also will lead to a lack of consistency in the courts as to what conduct is retaliatory, as illustrated by the above cases. To defend against potential retaliation claims, employers should train their supervisors regarding retaliation and the Court's broad standard. In particular, supervisors must be aware that the assignment of tasks perceived as more difficult or less desirable, even though the tasks fall within an employee's job classification, may constitute actionable retaliation.

Employers also should review their personnel policies to ensure that they prohibit not only discrimination and harassment, but also retaliation. And, before taking any potentially adverse action against employees who may have complained about discrimination, supervisors should consult with their human resources experts and counsel regarding that decision. In short, in the wake of Burlington Northern, once an employee has made a complaint of discrimination, every action the employer takes regarding that employee will be subject to greater legal scrutiny.

David L. Gordon is a Partner in the Atlanta office of Jackson Lewis LLP. He would like to thank his colleague, Melissa Kotun, who assisted in preparing this article.

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.)

In Burlington Northern, the plaintiff was employed as a railroad track laborer. She was the only female in her department, and she was responsible for removing and replacing track components, transporting track material, cutting brush and clearing litter and spillage from the right of way.

Shortly after the plaintiff's hire, a forklift operator position became available, and the plaintiff was reassigned to that position. After her reassignment, the plaintiff complained that her supervisor sexually harassed her. The company investigated the complaint and suspended the supervisor, ordering him to attend sexual harassment training sessions.

Soon thereafter, a company official advised the plaintiff that during the sexual harassment investigation, the company had received several complaints from other employees about her assignment to the forklift position. The complaints did not relate to the plaintiff's performance, but to the fact the forklift was a less arduous and 'cleaner' job than other track-laborer positions. Employees believed a 'more senior man' should have the position, not a junior-level employee like the plaintiff. As a result of the complaints, the company removed the plaintiff from the forklift position and assigned her to a standard track-laborer position. Her pay and benefits, however, remained the same. The plaintiff was eventually suspended for alleged insubordination, but was reinstated with full back pay after she filed a grievance.

The plaintiff filed a lawsuit alleging the change in her job duties and work suspension without pay for insubordination had constituted unlawful retaliation, even though she was reinstated 37 days after her suspension with full back pay. A jury awarded her $43,500 in compensatory damages. When the employer appealed, the United States Court of Appeals for the Sixth Circuit upheld the jury verdict, but differed as to the appropriate legal standard to apply in determining whether retaliation had occurred ' an issue that also had divided the various appellate courts. The U.S. Supreme Court granted certiorari to resolve the differences in the circuit courts regarding the proper standard for a retaliation claim.

On appeal, the employer argued that the anti-retaliation provision of Title VII should be limited to prohibit retaliatory conduct by employers that affects the employee's compensation, terms, conditions or privileges of employment. The employer noted that Title VII's anti-discrimination provision protects individuals only from employment-related discrimination and urged the Court to read the anti-discrimination and retaliation provisions to mean the same thing.

The High Court's Ruling

The Court rejected the employer's argument. The Court noted that Title VII's anti-discrimination provision and retaliation provision differ significantly. In reaching its decision, the Court analyzed the express statutory language prohibiting discriminatory and retaliatory conduct. The Court noted that while the anti-discrimination provision of Title VII specifically prohibits actions 'with respect to compensation, terms, conditions or privileges of employment,' the anti-retaliation provision does not contain such an express limitation. Rather, the anti-retaliation provision merely prohibits 'discrimination' against those who oppose a practice forbidden by Title VII or participate in a Title VII proceeding. The Court held that this distinction evinced Congress' purpose of prohibiting employers from 'interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.' The Court concluded that a broad reading of the anti-retaliation provision is necessary, since an 'employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.'

The Court also found that the two provisions serve different purposes and should therefore be interpreted differently. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their race, ethnicity, gender or religion. The anti-retaliation provision seeks to prevent employers from interfering with an employee's efforts to secure Title VII's guarantees. The Court noted that this objective could not be secured by focusing only on workplace-related conduct. It concluded that the anti-retaliation provision 'extends beyond workplace-related or employment-related harm.'

Determining Retaliation

The Court then set forth the proper standard for determining whether an alleged action by an employer constituted unlawful retaliation. It held that a plaintiff must show that a 'reasonable employee would have found the challenged action materially adverse.' The employer's conduct must dissuade 'a reasonable worker from making or supporting a charge of discrimination.' The Court emphasized that this standard is objective; an individual employee's 'unusual subjective feelings' are irrelevant to the analysis. Reiterating that Title VII is not a general workplace civility code, the Court stated that a plaintiff must demonstrate that the alleged harm is significant. Whether an action is materially adverse will depend on the circumstances of a particular case and should be judged from the perspective of a reasonable person in plaintiff's position. Simply put, 'context matters.'

Adverse Examples

To illustrate the application of its standard, the Court gave two examples; one involving a schedule change, and the other a refusal to invite an employee to lunch, an issue discussed heavily during oral argument. A schedule change might not matter to most employees, the Court explained, but it 'may matter enormously to a young mother with school age children.' Likewise, a supervisor's refusal to invite an employee to lunch is 'normally trivial, a nonactionable petty slight.' However, excluding an employee from a 'weekly training lunch that contributes significantly to the employee's professional advancement' might well deter a reasonable employee from complaining. Depending on the circumstances, a reasonable employee might consider these actions materially adverse.

Applying this standard to the specific facts before the Court in Burlington Northern ' whether a reassignment of duties within the same job description and/or a 37-day unpaid suspension which was followed by reinstatement and full back pay, constituted actionable retaliatory conduct ' the Court held that each action could be the basis for a retaliation claim. Regarding the reassignment of job duties, the Court stated that while reassignment is not automatically actionable, in this case, there was evidence that the track-labor duties were more arduous, and that the forklift operator position was more prestigious. For that reason, reassignment would have been materially adverse to a reasonable employee. As to the suspension, the Court held that it was actionable because a 'suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.' The Court noted that '[m]any reasonable employees would find a month without a paycheck to be a serious hardship.' The Court noted in particular the plaintiff's testimony that going without her normal compensation during her suspension resulted in the 'worst Christmas [she] had out of [her] life' and that she became depressed, which resulted in her obtaining medical treatment for emotional distress.

The Aftermath

Since the Supreme Court issued its decision in Burlington Northern, several lower courts have relied on the decision to determine whether certain employer conduct amounted to retaliation. In one recent case, a court denied summary judgment to the employer on an employee's retaliation claim under facts similar to those in Burlington Northern. Rizzo v. Niagra Mohawk Power Co., Case No. 1:04CV1507 (S.D.N.Y. June 22, 2006). In Rizzo, the plaintiff alleged that her employer retaliated against her after she complained of sexual harassment. One example of retaliation alleged by the plaintiff was her assignment to clean a particular piece of equipment, one of the more difficult jobs in the plaintiff's department. Though the plaintiff admitted that other employees also were assigned this task, she alleged she was assigned the task more often and was denied assistance in cleaning. The court held this evidence of the employer's conduct was sufficient to proceed to trial on her claim of retaliation.

At least one court has held that initiation of a formal disciplinary investigation ' even one that did not result in formal discipline ' constituted conduct sufficient to at least establish a prima facie case of retaliation. Doucet v. Univ. of Cincinnati, Case No. 1:05CV148 (S.D. Ohio July 19, 2006). In Doucet, the plaintiff alleged that she had been denied faculty re-appointment at the University's fashion and design school because of her French national origin. During her dispute over reappointment, the plaintiff became involved in another dispute over her fall course assignments. A few months later, the University instituted academic disciplinary proceedings against the plaintiff, alleging she was not teaching the assigned course content. The court, however, went on to grant the University's motion for summary judgment on other grounds.

In a similar vein, another court concluded that a threatened disciplinary action, a formal disciplinary notice and a poor performance evaluation constituted 'materially adverse actions that ' support a claim of retaliation,' and denied the employer's motion to dismiss the employee's retaliation claim. Browne v. Potomac Elec. Power Co., Case No. 1:05CV1177 (D.D.C. July 3, 2006). In contrast, another court granted an employer's motion for summary judgment, concluding that requesting that an employee meet with his superiors and presenting the employee with a 'last chance agreement' was insufficient to support a claim for retaliation under Title VII. Molina v. Equistar Chems., L.P., Case No. 2:05CV327 (S.D. Tex. June 30, 2006).

Examining alleged retaliatory conduct outside the workplace, another court permitted an employee to amend her complaint to allege a retaliation claim based on the employee's discovery from her doctor that her employer had interfered with her request for disability benefits. Howard v. Gutierrez, Case No. 1:04CV756 (D.D.C. July 10, 2006). The employer argued that it would be futile for the plaintiff to amend her complaint because she had not alleged any retaliatory actions that would materially affect her terms, conditions or privileges of employment. The court rejected the employer's argument in light of Burlington Northern, holding that the conduct alleged by the plaintiff might dissuade a reasonable employee from making or supporting a charge of discrimination.

Commentary

According to the EEOC, approximately 26% of all charges filed in 2005 involved retaliation claims. That percentage can only be expected to increase after Burlington Northern. The broad nature of the U.S. Supreme Court's standard also will lead to a lack of consistency in the courts as to what conduct is retaliatory, as illustrated by the above cases. To defend against potential retaliation claims, employers should train their supervisors regarding retaliation and the Court's broad standard. In particular, supervisors must be aware that the assignment of tasks perceived as more difficult or less desirable, even though the tasks fall within an employee's job classification, may constitute actionable retaliation.

Employers also should review their personnel policies to ensure that they prohibit not only discrimination and harassment, but also retaliation. And, before taking any potentially adverse action against employees who may have complained about discrimination, supervisors should consult with their human resources experts and counsel regarding that decision. In short, in the wake of Burlington Northern, once an employee has made a complaint of discrimination, every action the employer takes regarding that employee will be subject to greater legal scrutiny.

David L. Gordon is a Partner in the Atlanta office of Jackson Lewis LLP. He would like to thank his colleague, Melissa Kotun, who assisted in preparing this article.