On June 22, 2006, the United States Supreme Court decided the case of Burlington Northern & Santa Fe Railway Co. v. White and addressed the split between the circuits as to what adverse actions are sufficient to fall within the scope of the federal law’s anti-retaliation provision.
Sheila White was hired by Burlington in June of 1997 as a "track laborer." Her job description included removing and replacing track components, transporting track materials, cutting brush and clearing litter and cargo spillage from the road. Shortly after she started work, forklift responsibilities became available in her department. Because Ms. White had previous experience operating a forklift, she was assigned forklift responsibilities. She continued to perform other track laborer tasks, but operating the forklift became her primary responsibility.
Three months after her hire, Ms. White complained that her immediate supervisor had made comments expressing that women should not be in her department. She also complained that he had made insulting and inappropriate remarks to her in front of her male co-workers. After an investigation, Burlington suspended the supervisor for 10 days and ordered him to attend sexual harassment training. When Ms. White was advised of the supervisor’s discipline, she was also told that she was removed from forklift duties and would instead perform the standard truck laborer duties. The manager explained to Ms. White that co-workers had complained that a "more senior man" should have the job.
Ms. White filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that the reassignment of her duties constituted unlawful sex-based discrimination and retaliation for having complained about her supervisor. She filed a second charge less than two months later asserting that the manager had placed her under surveillance and was monitoring her daily activities. A few days after notice of the second charge was mailed to the manager, Ms. White had a disagreement with another supervisor. The supervisor reported to the manager that Ms. White was insubordinate and the manager immediately suspended Ms. White without pay. After following internal grievance procedures, Burlington concluded that Ms. White had not been insubordinate, reinstated her, and paid her back pay for the 37 days of her suspension. Ms. White filed a third EEOC charge based on her suspension and filed an action against Burlington in federal court alleging unlawful retaliation under Title VII.
The jury found in Ms. White’s favor and concluded that both the reassignment of job duties and the suspension constituted unlawful retaliation. On appeal, the full panel of the Sixth Circuit Court of Appeal affirmed the district court’s judgment in favor of Ms. White on both counts. However, they members of the court differed as to the proper standard to apply. The Sixth Circuit majority concluded that an employee must prove an "adverse employment action" (which it defined as a "materially adverse change in the terms and conditions" of employment) to establish actionable retaliation. Other circuits, such as the Ninth Circuit had concluded that the employee simply must establish "adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." The Supreme Court granted review to resolve this disagreement.
In reaching its decision, the Court compared the statutory language of the provisions regarding discrimination with those regarding retaliation and found that the retaliation provision did not contain the same language concerning hire, discharge, compensation, terms, conditions, or privileges of employment. The Court concluded that the Sixth Circuit’s standard would not deter the many forms that effective retaliation can take. Instead, the Court concluded that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse and explained that materially adverse "in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’" The Court emphasized that its ruling was meant to separate significant from trivial harms and repeated the rule that "normally, petty slights, minor annoyances and simple lack of good manners will not create such a deterrence."
This case highlights the importance of protecting employees who complain from conduct that could be considered retaliatory. Here, Ms. White was kept in the same job, but assigned less desirable tasks within her job description. Even though Burlington investigated Ms. White’s suspension, found in her favor, and repaid her the missed wages, the jury and the Supreme Court found that its actions did not undo the retaliatory nature of the suspension. Therefore, employers should keep a close watch on the actions of supervisors and managers after an employee has complained of discrimination or engaged in other protected activity.