Articles

United States Supreme Court Settles Split in Circuits in Retaliation Cases

Burlington Northern v. White, ___ S.Ct. ___ (2006)

In the unanimous opinion in Burlington Northern v. White, the United States Supreme Court clarified the standard to be used in determining when conduct is considered retaliatory for purposes of an employment discrimination claim. The court held that the plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that the challenged action might well dissuade or discourage a reasonable worker from making or supporting a charge of discrimination.

The Supreme Court rejected the Fifth Circuit long-held test that no action is retaliatory unless the action was an “ultimate employment action,” such as firing or decreasing an employee’s compensation.

The Supreme Court rejected that standard out of hand and noted that the anti-retaliation provision of Title VII was not confined to harms that are related to the workplace or that even occurred at the workplace. Instead, it covers all employment actions that would have been materially adverse to a reasonable employee or job applicant.

The Supreme Court did point out that the challenged actions must be “materially” adverse to the employee as the anti-retaliation statute does not address trivial harms. Because Title VII does not set forth a general “civility” code, the Court noted that an employee’s decision to report discriminatory behavior will not necessarily immunize the employee from those petty slights or minor annoyances that often take place and that all employees experience. Instead, the challenged act must be materially adverse as viewed by a reasonable employee.

The court noted that it was impossible to draw a bright line test as to all acts that are retaliatory because the significance of any given act of retaliation will depend upon the particular circumstances. As the Court succinctly noted, “context matters.”

This is a sweeping change of the law for employers who operate in the Fifth Circuit. Employers who are used to operating under the “ultimate employment action” standard utilized by the Fifth Circuit must now realize that it will be more difficult to obtain a summary judgment in a retaliation case. Employers must exercise caution to make sure that all of their employees are aware that it is illegal to retaliate against any employee who has engaged in protected activity and train their employees on the types of actions that can be considered retaliatory under the new standard.