Burlington Northern v. White - Title VII retaliation - analysis
June 22, 2006 by Ross Runkel at LawMemo
What kind of employer actions can be retaliation under Title VII? Burlington Northern v. White (US Supreme Court 06/22/2006) gives these answers.
"We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
- No link to employment is needed.
Unlike Title VII's basic anti-discrimination section (703), the anti-retaliation section (704) has different language and a different purpose. Section 703 prohibits discrimination with respect to conditions of employment, but Section 704 has "no such limiting words." Section 703 prevents injuries based on who people are (based on sex, race, etc.), while Section 704 is based on what people do (e.g., filing an EEOC charge or complaining to management). Limiting Section 704 retaliation to employer actions that are work-related or employment-related would not achieve Section 704's purpose.
- Rochon v. Gonzales, 438 F. 3d 1211 (DC Cir 2006). Retaliation against FBI agent took the form of the FBI's refusal, contrary to policy, to investigate a death threat against the agent.
- Berry v. Stevinson Chevrolet, 74 F. 3d 980 (10th Cir 1996). Employer filed false criminal charges against a former employee.
- Material adverse action. In order to "separate significant from trivial harms," the Court requires the employee to show that the employer's action was "materially adverse." This will exclude "petty slights or minor annoyances."
- Reaction of a reasonable employee. The Court adopted an objective standard, so an individual employee's "unusual subjective feelings" will not be relevant. The focus is on the materiality of the employer's action and "the perspective of a reasonable person in the plaintiff's position."
- Changed job duties. In the Burlington case, the employer changed the employee's duties, however the duties were still within her job description. The job description did not matter. What mattered was that the new job was dirtier, harder, less prestigious, and perceived by other employees as being worse.
- Temporary suspension. In the Burlington case, the employee was suspended for 37 days, and then reinstated with back pay. The Court said a reasonable employee would find a month without a paycheck to be a "serious hardship."
- Schedule change. Might not matter to many employees, but "may matter enormously to a young mother with school age children."
- Refusal to invite to lunch. Usually trivial, but exclusion from a weekly training lunch might well deter a reasonable employee from complaining.
My view: This Court understands how to read a statute.
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