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"Adverse employment action" reaches Supreme Court
December 05, 2005 by Ross Runkel at LawMemo
What's an "adverse employment action" in a retaliation case? The US Supreme Court said on December 5 that it will decide that question in Burlington Northern v. White (Docket No 05-529).
Sheila White claimed her employer retaliated against her because she filed an EEOC charge. A jury agreed. The 6th Circuit (en banc - 13 judges) affirmed. The unhappy employer has persuaded the US Supreme Court to take a look.
The issue was whether two actions were adverse employment actions under Title VII.
- White was working as a fork lift operator, and the employer transferred her to a job as a standard track laborer
- Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.
The 6th Circuit explained that in order to succeed in a retaliation case the employee must prove that there was an "adverse employment action." Although some courts have said that Title VII applies only to an employer's "ultimate employment decision" such as hiring, granting leave, discharging, promoting, and compensating, the 6th Circuit joined the majority of circuits in rejecting that test.
The 6th Circuit also rejected the test included in the EEOC Guidelines: "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity."
The test adopted by the 6th Circuit distinguishes between (a) situations in which there is "a materially adverse change in the terms of her employment" and (b) situations involving a "mere inconvenience or an alteration of job responsibilities" or a "bruised ego."
Under the 6th Circuit's test, the suspension was an adverse employment action because it is "not trivial" and involves more than a "mere inconvenience" or "bruised ego." The job transfer was an adverse employment action even though both jobs were paid the same. The laborer job was more arduous, dirtier, and carried less prestige, and the trial court characterized it as a demotion.
CONCURRENCE: Although the 6th Circuit was unanimous as to the above result, five judges (out of 13) took the position that the court should adopt the standard proposed by the EEOC: "reasonably likely to deter [employees] from engaging in protected activity." This would be more consistent with the statutory language, Congressional intent, and Supreme Court case law.
Decision below: White v. Burlington Northern (6th Cir en banc 04/14/2004)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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