High Court Broadens Grounds for Retaliation Claims

Lew Clark
June 23, 2006 — 1,849 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.
Settling a point of disagreement among federal appeals courts, the Court held on June 22 in Burlington Northern & Santa Fe Railway Co. v. White that to establish retaliation, an employee need only show "employer actions that would have been materially adverse to a reasonable employee or job applicant." The actions need not even be job-related actions. White involved alleged retaliation against a female rail yard employee whose position was not changed, but whose duties were changed from forklift operation to manual labor after she filed a sexual harassment charge with the EEOC. The employer suspended her for insubordination, but she was ultimately reinstated and suffered no wage loss. A jury awarded White US$43,500. The Supreme Court upheld the verdict and ruled that retaliation claims do not require the same showing of "adverse action" as discrimination claims. The Court concluded that "the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." Instead, for retaliation claims, employer actions simply "must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Because retaliation plaintiffs are not required to establish the substantive elements of discrimination or demonstrate adverse employment action, the White decision may deepen the recent trend of dramatic increases in retaliation claims under all discrimination statutes. Employers must exercise extreme caution when considering any action against an employee who has filed a complaint, charge or lawsuit and be sure to establish a strong factual record of nonretaliatory reasons for the action before taking any steps with the employee. Squire, Sanders & Dempsey L.L.P. All Rights Reserved June 2006

Lew Clark


Lewis Clark concentrates his practice on counseling and advocacy for both private and public sector employers in all types of labor and employment matters and is an experienced mediator of employment and other civil litigation matters.