Supreme Court changes legal landscape for retaliation claims under Title VII

By G. Phillip Shuler

Employers and their attorneys alike have long awaited the decision that the United States Supreme Court rendered on June 22. At issue was the way in which retaliation claims based upon Title VII of the Civil Rights Act of 1964 are to be analyzed and proven.

For a long time, the rule had been that, unless the aggrieved employee had suffered an "ultimate employment decision" - which typically included termination, demotion etc. - the employee could not state a viable claim for retaliation under Title VII. That standard, which was applicable in our federal circuit, was at odds with standards applied in other federal circuits around the country.

The Supreme Court in this case, Burlington Northern Santa Fe Railroad v. White, resolved that conflict among the circuit courts of appeals and established a new legal standard for what constitutes an adverse employment action for purposes of stating a retaliation claim under Title VII.

The employee plaintiff in the case was a female railroad worker who had previously complained about sexual harassment on the job. She based her retaliation claim upon two things:

1) that, following her complaints, she had been re-assigned to a more physically demanding job (even though that job was still within her job description);

2) that she had been suspended without pay for 37 days (even though her employer eventually paid her for all of the time). A jury found in favor of the employee, but the court of appeals overturned the verdict because neither of the two bases for the employee's retaliation claim constituted an "ultimate employment decision."

In rejecting the "ultimate employment decision" approach applied by the court of appeals in the case, the Supreme Court interpreted Title VII's anti-retaliation provision and found that it "does not confine the actions and harms it forbids to those that are related to employment or occur at the work place."

In arriving at this interpretation, it was clear that the Court was concerned that employers intent on retaliating against employees could simply choose a form of retaliation that was not an "ultimate employment decision" and thereby escape liability under Title VII. Along these lines, the Court essentially found that the "ultimate employment decision" framework was inadequate because it "would not deter many forms that effective retaliation can take."

Instead, the Court developed and articulated a "reasonable employee" standard. Under this new standard, a plaintiff employee will have to "show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

While the Court's decision is understandably being hailed as a victory for employees, the Supreme Court offered some language to both comfort employers and to notify the plaintiffs' bar that its decision should not be interpreted as "open season" on retaliation claims.

On this issue, the Court wrote that "it is important to separate significant from trivial harms" and re-affirmed that each claim and each corresponding action taken by the employer must be judged in light of each unique set of facts and circumstances. Nevertheless, against the background of the Court's opinion as a whole, this qualification will likely do little to dissuade the plaintiffs' bar from believing that federal courts are now required to be more friendly to Title VII retaliation claims - especially at the summary-judgment stage.

What does all of this mean for employers? In essence, the Burlington Northern decision underscores the importance of considering in greater detail, and in advance, the potential implications of all disciplinary decisions and employment decisions in general. What makes the employer's burden in this regard even more difficult is the fact that the Supreme Court did not confine actionable retaliatory conduct to the work place.

Now, any disciplinary or other employment decision that may cause harm to an employee - even outside of the work place - may also be actionable retaliation. Again, this will depend on the unique facts and circumstances of each case. Likewise, in the case of disciplinary reassignment, an employer will now be unable to defend itself by taking the position that the reassignment was still within the employee's job description.

If there is one bright spot in the decision for employers it is the fact that the Court adopted an objective "reasonable employee" standard. This will further help minimize the legal significance of any subjective feelings or opinions from retaliation cases because the new standard will require the plaintiff employee to show that the actions taken by the employer would be considered adverse by the average employee, under similar circumstances, and not just that it was offensive to the particular plaintiff employee.

In summary, the Burlington Northern decision clarifies retaliation issues for both employees and employers. But, it certainly appears that employees gained much more from the decision - at least for now.

While it has always been important to consult with your human-resources professionals and attorneys when undertaking disciplinary action against an employee, this decision makes doing so even more important.