On June 22, 2006, the United States Supreme Court gave a huge victory to employees by ruling that retaliation claims under Title VII are not confined to actions related to employment or which occur at the workplace. Instead, courts must decide on a case-by-case basis whether “reasonable” employees would be intimidated by the actions that their employers take against them.

Sheila White worked for Burlington Northern Railroad as a forklift operator in their Memphis train yard. As the only woman in the department, White constantly heard from her supervisor that women didn’t belong in the Maintenance of Way department. White complained about her supervisor’s remarks, and while the company ordered the supervisor to refrain from that behavior, the victory was short-lived because White was promptly reassigned from her forklift job to a more general laborer position. Burlington Northern explained that the reassignment resulted from input from White’s co-workers that “a more senior man’” should have the “less arduous and cleaner job of forklift operator.” White filed a charge with the Equal Employment Opportunity Commission (EEOC) challenging the transfer, and a subsequent second charge relating to her belief that she was being subjected to unfair surveillance. Almost immediately, White was charged with insubordination and suspended without pay for a month. Her union grievance challenging the suspension was resolved in her favor, resulting in reinstatement and full back pay for the time that she was off work. White thereafter filed a third EEOC charge, claiming that the suspension was in retaliation for her prior discrimination complaints. She eventually sued the company for retaliation under Title VII.

After a full trial, the jury ruled in White’s favor and awarded her $43,500 in damages. On appeal before the Sixth Circuit Court of Appeals, Burlington Northern argued that the retaliation provision of the law was only intended to cover “ultimate employment decisions” taken in response to a discrimination claim, such as those affecting hiring, firing, promotions or compensation. The Sixth Circuit disagreed and affirmed the jury decision, joining the majority of federal appeals courts concluding that any “adverse employment action” resulting from an employee’s discrimination complaint is unlawful under Title VII.

The company took the appeal to the United States Supreme Court, arguing again for limiting retaliation claims only to those involving “ultimate employment decisions.” They also contended that any injury to White was so minimal and transitory as to fall below the threshold of the type of adverse action that should count as illegal retaliation. The justices resoundingly rejected these arguments, voting 9-0 to affirm the jury verdict for White. In his written decision for the Court, Justice Breyer adopted the tests set out by the Seventh and the District of Columbia Circuit Courts that a claimant “must 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.” In this case, the judges had no difficulty finding that the 37-day suspension (even though it was ultimately rescinded) and an inconvenient transfer to a more physical job met the test for illegal retaliatory behavior. Burlington Northern & Santa Fe Railroad v. White, US Sup. Ct. No. 05-259, Decided June 22, 2006.

This decision reminds us that almost anything that happens to an employee after the filing of a charge or lawsuit potentially can be viewed as illegal retaliation. Therefore, if an employee’s performance or behavior justifies adverse action after the filing of a charge or lawsuit, make sure that the decision is well documents, justified and consistent with previous decisions in similar matters. This will help dispel the notion that the adverse action is retaliatory.

For more information on this ruling, please contact Le Phan at 612-373-8407 or hphan@felhaber.com.

Founded in Saint Paul in 1943, Felhaber, Larson, Fenlon and Vogt, P.A. has offices in Minneapolis and Saint Paul. With over 60 attorneys, the firm serves clients in the areas of corporate and commercial law, employee benefits, employment law, estate planning, health care, intellectual property, labor law representing management, litigation, real estate, transportation law, and workers' compensation.