Title VII Retaliation Claims & the Impact of Burlington Northern & Santa Fe Railway Co. v. Sheila White

Michael J. Sciotti Esq.
July 27, 2006 — 3,435 views  
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The United States Supreme Court recently addressed retaliation claims under Title VII of the Civil Rights (“Title VII”) in Burlington Northern & Santa Fe Railway Co. v. Sheila White, __S.Ct. __, 2006 WL 1698953 (2006). The decision will be important for employers to understand to properly prevent and defend against retaliation claims under Title VII, and other employment laws such as the Americans With Disabilities Act and Age Discrimination In Employment Act. As a result of this decision the United States Supreme Court has broadened the scope of the Title VII retaliation provisions thus making it easier for a plaintiff to proof retaliation.

The plaintiff in Burlington Northern, Sheila White, was hired as a laborer and forklift operator for the defendant, the Burlington Northern & Santa Fe Railway Co. The plaintiff was the only female employee in the maintenance department. The plaintiff complained to her employer when her direct supervisor made comments that women should not be working in the maintenance department, and further insults in front of the her male coworkers. An internal investigation was performed. As a result, the plaintiff’s supervisor was suspended for ten days, and required to attend a sexual-harassment seminar. The plaintiff’s employer then reassigned her from forklift operator to laborer after the incident occurred. According to the defendant this was done, because of complaints that a more senior employee should have the forklift operator position. The plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) for retaliation by her employer for changing her job position after she made the complaint about her supervisor and for increased monitoring of her work by her employer.

Soon after, the plaintiff and another direct supervisor disagreed about a transportation matter which resulted in a report of insubordination and suspension without pay for the plaintiff. The plaintiff complained to her employer who through a grievance procedure investigated the issue and found that she was not insubordinate and reinstated the plaintiff with backpay for thirty-seven days. The plaintiff filed another discrimination complaint with the EEOC for retaliation by her employer. Subsequently, the plaintiff filed suit in federal court alleging a Title VII retaliation claim.

A jury trial occurred in the United States District Court for the Western District of Tennessee. The jury awarded the plaintiff $43,500 in compensatory damages and medical expenses. A divided three-judge panel for the United States Court of Appeals for the Sixth Circuit panel reversed the judgment and found in favor of the defendant on the retaliation claims. The full Court of Appeals for the Sixth Circuit vacated the panel’s decision and affirmed the plaintiff’s award on her retaliation claims. While upholding the plaintiff’s award the Court of Appeals for the Sixth Circuit disagreed on how to apply the anti-retaliation standards of Title VII. The United States Supreme Court granted a writ of certiorari to clear up the misunderstanding concerning the Title VII retaliation provisions.

The issue concerned whether the retaliation had to be employment or workplace related, and how harmful it must be to be considered retaliation. On its face Title VII speaks of retaliation in terms of an “adverse employment action”[1] or an action that negatively affects the “terms, conditions, or benefits of employment.”[2] The EEOC’s Compliance Manual adopts a broader definition and speaks of retaliation being an “adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or other from engaging in protected activity.”[3] The United States Supreme Court ruled that the EEOC’s interpretation is the proper standard to follow. This standard allows retaliation, not directly related to employment, to be actionable. The Supreme Court stated:

Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Court of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called ultimate employment decisions.[4]


The Supreme Court indicated that “the anti-retaliation provisions protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”[5] In the Court’s opinion “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.”[6] The Court also stated that taken in context this means that the challenged action would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”[7] The term “reasonable”[8] is used to avoid subjective employee emotions from making the harm or injury immeasurable. The Court supported its reasoning by stating:

We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.[9]


The Court also found that when determining the harm or injury of retaliation that “…the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.”[10] The standard developed by the Supreme Court is written purposely to be general and objective; but most importantly it focuses on the retaliatory act itself and not the discrimination that occurred. “By focusing on the materiality of a challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”[11]

The Court’s evaluation of the case’s facts determined that the retaliatory actions of reassignment and suspension did cause harm or injury to the plaintiff. The new job assignment was considered “arduous and dirtier”[12] than the previous position and the suspension caused the plaintiff to face the challenges of unemployment, such as no income for thirty-seven days and uncertainty of reinstatement. The unemployment also caused the plaintiff emotional and physical distress resulting in medical attention for depression. The Supreme Court stated in their decision that “[t]he anti-retaliation provision protects and individual not from all retaliation, but from retaliation that produces an injury or harm.”[13] In a unanimous decision the Supreme Court affirmed the Court of Appeals in favor of the plaintiff, including damages.

Justice Alito, although apart of the majority decision, issued a concurring judgment which disagreed with the court’s interpretation of retaliation. He states that the court disregards two available definitions of retaliation for a third unfounded test that is not what Congress established in the language of this law. Justice Alito disagrees with the court’s interpretation of retaliation because it does not apply the language of the law, causing difficulty in determining the severity of “a charge of discrimination”[14] related to the retaliation and the court’s use of “reasonable worker.”[15] In addition, he criticizes the causation between the court’s test of whether the retaliation would have dissuaded the employee from complaining about the discrimination. Justice Alito concurs with the majority and the Court of Appeals decision to award the plaintiff damages because the reassignment and suspension were forms of retaliation as a “materially adverse employment action.”[16].

Given that the Supreme Court has broadened what acts may constitute retaliation employers should: (1) Review, and if necessary revise, their harassment and discrimination policies and make sure that retaliation is properly addressed; (2) Redistribute their policy and obtain employees signatures acknowledging that they have received, read and understood the policy; and (3) Provide harassment and discrimination training for all employees and make certain that retaliation is addressed and understood. In addition, before making any type of employment decision the employer should make sure they have no concerns of retaliation.


*Michael J. Sciotti, Esq. is a Partner and Chair of Hancock & Estabrook, LLP’s Labor & Employment Practice Group. He may be reached at (315)425-3502 or [email protected]. The firm’s website is: www.Hancocklaw.com.

Michael J. Sciotti Esq.

Hancock & Estabrook, LLP