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Thursday’s Decision in Burlington Northern v. White

Eric S. Dreiband of Akin Gump has this summary of Thursday’s decision:

On June 22, 2006, the Court issued its decision in Burlington Northern v. White, No. 05-259, and held that the anti-retaliation protections of Title VII of the Civil Rights Act of 1964 are not limited to actions and harms that are related to employment or occur at the workplace. Title VII’s anti-retaliation protections, the Court said, extend to employer actions that would have been materially adverse to a reasonable employee or job applicant. The Court also held that respondent Sheila White presented sufficient evidence to sustain a jury verdict in her favor. White claimed that her employer reassigned her to more arduous job duties and suspended her without pay for 37 days in retaliation for her discrimination complaints. The Court rejected Burlington Northern’s argument that the suspension lacked significance because it ultimately reinstated White with back pay.

The Court’s decision resolved a split in the circuits about the standards that govern Title VII retaliation claims. The Court rejected the Solicitor General’s position that retaliation claims are actionable only if there is a link between the challenged retaliatory action and the terms, conditions, or status of employment. The Court also rejected relatively employer-friendly standards of the Third, Fourth, Fifth, Sixth, and Eighth Circuits. Instead, the Court embraced the view of the D.C. and Seventh Circuits that Title VII’s retaliation protections prohibit employer actions that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This standard is similar to the standard, endorsed by the Equal Employment Opportunity Commission (“EEOC”) and the Ninth Circuit, that Title VII requires a plaintiff to establish adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.

The Court’s decision clarifies the standards that govern retaliation claims nationally. The decision expands worker protections in those circuits that had adopted a narrower reading of Title VII’s anti-retaliation provision – the Third, Fourth, Fifth, Sixth, and Eighth Circuits – and may expand the scope of liability for employers. The Burlington Northern decision will also provide guidance to the federal courts in retaliation claims brought under other labor and employment statutes, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, and the National Labor Relations Act.

In Burlington Northern, Sheila White was the only woman who worked in the Maintenance of Way department at Burlington Northern & Santa Fe Railway Company’s Tennessee Yard. Burlington Northern hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities, and White was assigned White to the “less arduous and cleaner job” of forklift operator.

In September 1997, White complained to Burlington Northern officials about insulting sex-based comments by her supervisor. Burlington Northern suspended the supervisor and ordered him to attend a sexual-harassment training session. Burlington Northern also removed White from forklift duty and assigned her to perform only the track laborer tasks. White filed a complaint with the EEOC and claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her complaint about her supervisor’s comments. White filed two additional EEOC charges in which she claimed that Burlington Northern placed her under surveillance, monitored her daily activities, and suspended her without pay. White also invoked internal grievance procedures, and those procedures led Burlington Northern to reinstate White to her position and award her back pay for the 37 days she was suspended.

White subsequently filed a Title VII action against Burlington Northern and claimed that changing her job responsibilities and suspending her for 37 days without pay was unlawful retaliation that violated Title VII. A jury agreed with White and awarded her $43,500 in compensatory damages. The district court entered judgment on the verdict. A divided panel of the Sixth Circuit reversed the judgment. The full Sixth Circuit vacated the panel’s decision, heard the matter en banc, and affirmed the district court’s judgment in White’s favor. The Sixth Circuit majority held that that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment.

The Supreme Court affirmed the Sixth Circuit’s judgment, but rejected the Sixth Circuit’s standard. The Court concluded that Title VII’s retaliation provision is broader in scope than Title VII’s substantive anti-discrimination provision. The Court observed that Title VII’s substantive anti-discrimination provision, Section 703(a), is limited in scope to actions that affect employment or alter the conditions of the workplace. Section 703(a) limits the scope of liability to certain enumerated categories: “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee.” In contrast, Title VII’s anti-retaliation provision, Section 704(a), contains “[n]o such limiting words.”

The Court explained its rejection of the Solicitor General’s position by looking to and relying upon the EEOC’s sub-regulatory guidance. The EEOC, the Court observed, “expressed a broad interpretation of the anti-retaliation provision.” The Court cited with approval the EEOC’s 1998 Compliance Manual statement that Title VII’s anti-retaliation provision “prohibit[s] any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”

The Court concluded that “[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” The harm must be materially adverse, which, the Court explained, means that a reasonable person might have been dissuaded from making or supporting a charge of discrimination. The Court added that “context matters,” and that “the significance of any given act of retaliation will often depend upon the particular circumstances.”

Justice Samuel Alito concurred in the judgment but wrote separately. Justice Alito did not agree with the majority’s conclusion that, he wrote, implies that “the persons whom Title VII is principally designed to protect – victims of discrimination based on race, color, sex, national origin, or religion – receive less protection than victims of retaliation.” Justice Alito would limit Title VII’s anti-retaliation protections to discrimination with respect to compensation, terms, conditions, or privileges of employment.