Supreme Court Provides Guidance on Retaliation

July 2006

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to retaliate against an employee because the employee has opposed a practice that Title VII forbids or because the employee has made a charge, testified, assisted or participated in a Title VII investigation, proceeding or hearing. The U.S. Supreme Court has recently determined that the prohibition against retaliation is not limited to employer actions that affect terms and conditions of employment. Rather the Court ruled that the ban extends to materially adverse non-employment-related discriminatory action. Burlington Northern & Santa Fe Railway Co. v. White.

In Burlington Northern, the suit was brought by a female railroad employee. She alleged that after she filed a sexual harassment complaint about a supervisor, she was reassigned from a forklift operator job to a track laborer job in which she replaced track components, cut brush and removed trash. She was then suspended for 37 days for insubordination. The railroad subsequently reversed the suspension and awarded back pay. The employee alleged that the reassignment and suspension were retaliatory and illegal under Title VII. The employer argued that the reassignment and corrected suspension were not materially adverse.

The Court disagreed and made the following points, which should be taken to heart by any employer who contemplates taking action which affects an employee who has complained, filed a charge, testified, assisted or participated in a Title VII investigation, proceeding or hearing:

1. The employer may not take an action which is materially adverse to the employee. This means that the action cannot be harmful to the point that it might well dissuade a reasonable worker from making or supporting a charge of discrimination.

2. Prohibited retaliation can include taking action not directly related to the employee’s employment or by causing harm outside the workplace. As examples, the Court cited the FBI’s refusal to probe death threats against an agent by a prisoner and an employer’s filing of false criminal charges against an employee who has filed a discrimination complaint.

3. An award of back-pay after a suspension may not undo the damage done by prohibited retaliation. The Court noted that back pay did not undo the employee’s trauma of going over a month without income and not knowing if or when she would return to work.

4. The Court determined that the transfer from a forklift operator job to a track laborer job was indeed materially adverse. It noted that the fork lift job required more qualifications, indicating that it was more prestigious, and was seen by other employees as better than the track labor job. It also noted that the track labor job was more arduous and dirtier than the fork lift job.

An employer who contemplates taking action which affects an employee involved in a Title VII proceeding must consider whether the proposed action would dissuade a reasonable worker from making or supporting a charge of discrimination, even if the action affects the employee outside the workplace. It has long been advisable for an employer to try to view such actions through the eyes of the employee. Based on the pronouncement of the Supreme Court in Burlington Northern, it is clear that the “employee’s eyes” approach is not only advisable, but crucial.

Burlington Northern, however, does not stand for the proposition that an employer does not have valid defenses to a charge of unlawful retaliation. An employer may legally take action which may be adverse to an employee for legitimate non-discriminatory reasons, such as poor performance or a change in the employer’s economic circumstances. In addition, the passage of time between an employee’s charge or complaint and an adverse action may well be persuasive in convincing a court or agency that unlawful retaliation has not occurred.

Nevertheless, employers must realize that retaliation is a “hot-button” issue with the EEOC and other agencies, and adverse action against an employee who has filed a charge or complaint will be viewed with suspicion, even if the original charge is found to be without merit. Employers must be especially vigilant to guard against action which might be viewed as retaliation during the period that a complaint or charge is pending and for a reasonable time thereafter.

For further information about discrimination in the workplace, including potential charges of retaliation, please contact Frank Schwerin or any other member of Schwartz Cooper's Labor & Employment practice.