Major Derailment!

The Supreme Court Redefines Retaliation Law in Burlington Northern Case

Perched on the edge of their seats and holding their breath, employment litigators scoured through the U.S. Supreme Court’s much awaited decision in Burlington Northern and Santa Fe Railway Company vs. Sheila White, released on June 20, 2006. In a decision in which all Justices joined the majority except for newly appointed Justice Samuel Alito (who agreed with the outcome case brought under Title VII of the Civil Rights Act of 1964. The Court ruled that an employee may have a claim for retaliation for events that occur even outside of the workplace. Unlawful retaliation occurs if “a reasonable employee would have found the challenged action materially adverse” the point that he or she would be deterred from making or supporting a charge of discrimination.

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee in the terms and conditions of employment due to the person’s gender, race, religion or ethnicity. Section 704(a) of the Title VII makes it unlawful for an employer to retaliate against a person who complains of discrimination, or because he or she participates in an investigation, proceeding or hearing regarding a complaint of discrimination. The court relied on the language differences in these two provisions to distinguish adverse actions which would show discrimination on protected factors from adverse actions which support a retaliation claim.

Courts have historically held that to have an actionable retaliation case, an employee would have to prove an adverse action typically involving a loss of pay, such as job loss, demotion or transfer with loss of pay, or detrimental change of job duties that alters the terms and conditions of employment and interferes with the employee’s ability to compete in the workplace. This concept was called an “ultimate employment decision.” In the Burlington decision, the Supreme Court held that this is too rigid a standard and broadened the law to recognize as retaliation events like the ones complained of by the Plaintiff Sheila White. A retaliatory act is one which a reasonable worker would find “materially adverse” and would dissuade that worker from making a complaint. The Supreme Court was careful to note, however, that “an employee’s decision to report discriminatory behavior cannot immunize that employee from petty slights or minor annoyances that often take place at work and that all employees experience.”

1) Burlington Northern and Santa Fe Railway Company vs. Sheila White, 126 S. Ct 2405, 165L. ED. 2d 345 (2006).

2) Dollis v. Rubin, 77 F. 3d 777, 781-82 (5th Cir. 1995). see also Elgaghil v. Tarrant County Junior College, 45 S.W. 3d 133, 143 (Tex. App. – Ft. Worth 2000, pet. den.).

In June, 1997, Burlington hired Sheila White to be a forklift driver at its Memphis, Tennessee yard. In a work environment historically dominated by men, she was the only female employee at the facility. According to White, her immediate supervisor and co-workers resented a woman working there, particularly a woman operating a forklift, an assignment of prestige in the company. White complained to management of gender-biased comments made by her supervisor and others. Later the superintendent met with White to tell her that her immediate supervisor was being suspended for 10 days for his conduct. He also informed her that she was being removed from forklift duty and reassigned to a standard truck laborer position, but without a change in pay. All parties to the lawsuit agreed that the truck laborer work was more arduous and much dirtier than operating a forklift. White was also later suspended for 37 days without pay on an insubordination charge, although Burlington management later rescinded the suspension and repaid White for that time.

White sued, claiming that her removal from the forklift position and the suspension were retaliation by her employer because she had complained about her supervisor’s conduct. A jury agreed with White and awarded her damages. Burlington argued on appeal that there was no adverse action taken against White to support a claim of retaliation, since she was no subject to an “ultimate employment decision.” She was only reassigned different duties within the same job description without monetary consequences and the suspension was reversed. The Sixth Circuit Court of Appeals disagreed and affirmed the jury’s decision, which then brought the case before the U.S. Supreme Court.

Based on the redefined standard, the Court held that it was reasonable for the jury to conclude that the acts complained of by White were materially adverse and retaliatory, despite the argument by Burlington that White had not suffered a monetary loss. The Supreme Court concluded that losing a prestigious assignment and going without a paycheck for a month would have a “chilling effect” on a reasonable worker and would deter complaints.

What makes this decision so critical to attorneys, litigants, employers and employees is that the U.S. Supreme Court altered what was once a clearly defined bright line rule into a loose standard based upon the facts and circumstances of each particular case and the perspective of a “reasonable” employee. If a reasonable employee in a plaintiff’s position would find the action materially adverse, it is actionable as retaliation. A materially adverse action is one which would “dissuade a reasonable worker from making or supporting a charge of discrimination.”

In other words, an employee no longer has to prove an ”ultimate employment decision” occurred in order to have a viable retaliation claim. Depending upon the circumstances, other acts may constitute retaliation if they meet the ”materially adverse” standard, such as a suspension without pay that is reversed, not being invited to a company luncheon, or hostility by supervisors and co-workers toward an employee because he or she complained.

This ruling is particularly troubling if an employee complains of discrimination while still employed, the employer is left to speculate as to what personnel actions could be perceived to be materially adverse versus mere petty slights. Employers must now take extreme care to ensure that no acts are taken against the employee that would qualify as retaliation under the new standard. Under Title VII and the comparable state law, retaliation claims are the easiest to get a jury and hardest to defend. This is not say that you must roll out the red carpet and serve caviar to an employee who files a charge. However, the ”reasonable worker” and ”materially adverse” standards under the new ruling are impossible to clearly define because each case must be judged on its own unique set of circumstances.

Hopefully courts serving Texas will strive to interpret this ruling so that clear parameters are set for employers and the attorneys who advise them, but only time will tell. Until then, employers should proceed with caution. Seek the advice of an employment lawyer when an internal complaint of discrimination is made by an employee. Make sure the employee is aware that retaliation is not tolerated, provide an avenue for communication of concerns and respond appropriately. Prompt investigation and action by the employer go a long way in defending an employment discrimination and retaliation case.

Article by Maris & Lanier, P.C., 5910 N. Central Expressway, Suite 1310, Dallas, Texas 75206.

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Dallas Business Litigation Attorneys at Maris & Lanier, P.C. handle all legal aspects of a business, from employment law to commercial transactions to trial and litigation of claims in the DFW area including the cities of Dallas, Fort Worth, Irving, Richardson, Plano, Frisco, McKinney, Grand Prairie, Arlington & Mesquite, TX.

Dallas Business Litigation Attorneys at Maris & Lanier, P.C. handle all legal aspects of a business, from employment law to commercial transactions to trial and litigation of claims in the DFW area including the cities of

Dallas, Fort Worth, Irving, Richardson, Plano, Frisco, McKinney, Grand Prairie, Arlington & Mesquite, TX.