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Retaliation After Burlington Northern
The Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), resolved a split in the Circuits when it held that a so-called ultimate employment decision is not necessary to establish a retaliation claim. Instead, the Court held that any act that might dissuade a reasonable employee from making or supporting a claim of discrimination can create employer liability for retaliation under Title VII of the Civil Rights Act of 1964. After the decision, many commentators have expressed concern that the new standard will open the floodgates for a wave of new retaliation lawsuits, but what has Burlington Northern really changed, and what does the new framework mean for employers?
Significant, Not Trivial Harms Protected
While it is clear that Burlington Northern expanded the scope of 'adverse actions' that can give rise to a retaliation claim, the Supreme Court also set certain limits, which have been repeatedly cited by the lower courts following the decision. First, the Court held that the law was not intended to protect employees from all changes at work, but only from action 'that produces an injury or harm.' Thus, the challenged action must be 'materially adverse,' a requirement the Court emphasized would separate 'significant from trivial harms.' The Court further noted that the anti-retaliation protection is not intended to immunize an employee who reports discriminatory behavior from 'those petty slights or minor annoyances' that often occur in the workplace.
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