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Big Case #1 - Burlington Northern v. White
August 13, 2006 by Ross Runkel at LawMemo
#1 in the Big cases series for 2006: Burlington Northern v. White, 126 S.Ct. 2405 (US Supreme Court 06/22/2006).
Facts: White claimed her employer retaliated against her for complaining about sex discrimination. She claimed two acts of retaliation under Title VII Section 704:
- White was working as a fork lift operator, and the employer transferred her to a job as a standard track laborer. Both assignments were within her job description.
- 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 reinstatement followed from procedures in the collective bargaining agreement.
Held: Both employer actions were prohibited retaliatory actions.
Key quote: "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."
- The retaliatory action need not cause financial loss.
- The retaliatory action need not occur at the workplace.
Examples: Rochon v. Gonzales, 438 F.3d 1211 (DC Cir 2006) (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).
- The actions must be "materially adverse" - "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
"The anti-retaliation provision seeks to prevent employer interference with 'unfettered access' to Title VII’s remedial mechanisms. Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997). It does so by prohibiting employer actions that are likely 'to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers. Ibid. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence."
- The action is viewed from the perspective of the reasonable employee.
"A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., Washington v. Illinois Dept. of Revenue, 420 F. 3d 658, 662 (7th Cir 2005) (finding flex-time schedule critical to employee with disabled child)."
"A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by 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 about discrimination."
Later case: Randolph v. Ohio Dept. of Youth Services, 453 F.3d 724 (6th Cir 07/13/2006) (administrative leave, then discharge, then reinstatement with back pay).
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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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