Burlington Northern: Watch Out For Retaliation Claims

In Burlington Northern & Santa Fe Railway Co. v. White (June 22. 2006), the Supreme Court ruled that Title VII's anti-retaliation provision has a broad and dangerous scope.The provision is not limited to retaliatory actions that affect an employee's terms and conditions of employment or even to actions that occur in the workplace. Rather, it makes unlawful any retaliatory act that is sufficiently harmful that it 'could well dissuade a reasonable worker from making or supporting a charge of discrimination.' Reassignment to a less attractive job or a temporary suspension without pay can constitute retaliation, the Court ruled. This decision will make it easier for employees to prove re- taliation and create greater risks for employers.

The Law

Title VII provides both direct prohibitions against discrimination and protection against retaliation for individuals who seek protection under Title VII. The anti-discrimination provisions make it unlawful for an employer 'to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment , because of such individual's race, color, religion, sex, or national origin' or to engage in acts 'which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.' In other words, the discrimination provisions are specifically limited to acts that affect an employee's status in the workplace.

The anti-retaliation provision, however, is not specifically limited to acts relating to employment status. Rather, it states that it is unlawful for an employer 'to discriminate ' against any employee or applicant 'because he has opposed any' of the kinds of discrimination listed above, or 'because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing' under Title VII, without any limitation on the kinds of discrimination prohibited.

The issue of what kinds of employer acts can constitute illegal retaliation has divided the federal appellate courts for years. Some courts had ruled that an employee who engages in protected activity essentially has to be fired or demoted before he or she can successfully sue for retaliation. Other courts of appeals had decided, however, that any adverse employment action reasonably likely to deter an employee from asserting or supporting a claim under Title VII is sufficient to support a retaliation claim. This is the issue the Supreme Court faced and decided in the Burlington Northern case.

The Facts

Sheila White was the only woman working in the Burlington Northern & Santa Fe Railway Co.'s maintenance department in Memphis, Tennessee. She was hired as a 'track laborer,' a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Beginning shortly after she started working, she spent most of her time operating a forklift and did not perform the more difficult manual tasks of the job. After she complained to company officials about gender discrimination and harassment, however, her forklift duties were taken away and she was reassigned to manual track laborer duties.Then, after she filed a charge with the EEOC alleging gender discrimination and retaliation, she was charged with insubordination and suspended without pay for 37 days. After she filed a grievance, the company found that she had not been insubordinate, reinstated her and awarded her full back pay.

White sued Burlington Northern for retaliation based on the change of duties and the suspension. After a one-week jury trial, she won $43,500 in damages plus medical expenses and attorney fees.

Were The Actions Against White Sufficiently Severe To Qualify As Retaliation?

White's case made its way to the Supreme Court, which addressed two issues: (1) whether Title VII's anti-retaliation provision is limited to formal decisions that impact an employee's job status; and (2) how harmful must the act be to constitute retaliation.

The Supreme Court adopted a much easier standard for proving retaliation than many courts had previously used. It ruled that retaliatory actions not only do not have to involve a formal employment decision, they also do not even have to occur in the workplace. Rather, any action that materially injures or harms an employee who has engaged in protected activity and could dissuade a reasonable worker from making or supporting a charge of discrimination can constitute actionable retaliation, the Court concluded.

The Court reasoned that Title VII's anti-retaliation provision is broader than its anti-discrimination provisions because Congress recognized that '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 gave as an example in the case of an FBI agent who claimed that, in retaliation for Title VII protected activity, he was not warned when the FBI learned about threats to his life from an inmate. According to the Court, '[a] provision limited to employment-related actions would not deter the many forms that effective retaliation can take.'

The Court did provide several limitations in its opinion. First, it ruled that only significant actions can constitute illegal retaliation. Employees cannot sue for retaliation based merely on 'petty slights' or 'minor annoyances' that may occur after an employee makes or supports a discrimination claim, the Court said.

Second, the Court ruled that the retaliation standard is objective. To be retaliatory, it said, an act must be likely to deter a 'reasonable employee' from filing a retaliation charge. Nonetheless, the Court stated that whether a particular act is likely to dissuade an employee from filing a discrimination charge depends on its context. For example, a schedule change might not matter to many employees, but could 'matter enormously' to a young mother with school-age children. In another example, the justices noted that a supervisor's refusal to invite an employee to lunch would normally be trivial, but exclusion from a weekly training lunch that would impact the employee's job opportunities could qualify as retaliatory.

Applying its new standard, the Court unanimously held that both the reassignment of White to manual labor and the 37-day unpaid suspension could support White's retaliation claim. 'Many reasonable employees would find a month without a paycheck to be a serious hardship,' the Court wrote, adding that 'an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.'

What It Means For You

The Burlington Northern decision certainly will make it easier for employees to claim retaliation. The Court's new standard - that an act is retaliatory if it 'could well dissuade a reasonable worker from making or supporting a charge of discrimination' - creates two significant risks. First, because retaliation does not have to be based on specific formal job actions, it will be more difficult to police potentially retaliatory actions by lower-level supervisors. Second, the new standard is itself vague and will require court decisions to flesh out what it really means in practice. In particular, the Court's statement that whether conduct is retaliatory may depend on context, such as the impact of a schedule change on a working mother, suggests that the same act may constitute illegal retaliation against one employee but not against another.

In light of the Burlington Northern decision, employers must be even more vigilant to protect employees from retaliation and more careful before taking adverse action against an employee who has complained about alleged discrimination or been involved in an EEOC charge.The following are some tips to help prevent retaliation claims.

Train supervisors. Ensure that first-level supervisors are aware of the legal prohibition against retaliation and the kinds of conduct that could constitute retaliation, especially conduct other than specific changes to job status. Train them to contact their own supervisors as well as human resources before taking any action toward an employee who has complained about discrimination.

Enforce policies consistently. Enforcing a policy or taking action concerning preexisting performance issues only after a discrimination complaint occurs is almost certain to bring on a retaliation claim.If you enforce your policies consistently, you may still be able to take appropriate discipline even after a discrimination complaint is made.

Document performance issues. Careful documentation of performance issues will assist you in defending against retaliation claims when you have a legitimate basis to take adverse action.

Keep employee complaints and investigations confidential. To prove retaliation, an employee must show that the decision maker knew about the protected activity.If a decision maker can truthfully testify that he/she never knew about the protected activity, it is extremely difficult for the affected employee to prove a causal connection. Thus, limit information about discrimination complaints and investigations to those employees who truly have a need to know.

Monitor employees who have complained. If you know that an employee has engaged in protected activity, monitor the situation to ensure that subtle forms of retaliation are not occurring.

Respond to potential retaliation. Take timely investigatory (and remedial if appropriate) action if you believe that any adverse treatment or employment decision may be motivated in any way by an employee's participation in protected activity.

If in doubt, seek help. If a tough call arises, such as where it appears the conduct of an employee who has engaged in protected activity legitimately warrants corrective action or termination, reach out for advice from an upper-level human resource professional or legal counsel.

Published November 1, 2006.