U.S. Supreme Court Broadens Employer Liability for Retaliation

June 23, 2006
The Supreme Court has now spoken on what kind of conduct an employer must engage in and how harmful that conduct must be for the employer to be liable for retaliation under Title VII of the Civil Rights Act of 1964. And the answer expands potential liability for employers in a way that is sure to inspire more lawsuits.

The Burlington Northern and Santa Fe Railway Co. employed plaintiff Sheila White as its only female forklift operator in its Tennessee Yard. White complained to management about sex discrimination after her supervisor told her that women didn't belong in his department. Although Burlington disciplined the supervisor, it also reassigned White away from forklift duty and into the dirtier tasks of a standard track laborer. White filed a complaint with the EEOC. Shortly thereafter, White was accused of insubordination and was suspended without pay for 37 days. Burlington reversed its decision and reinstated White with full back pay. Nonetheless, a jury decided in favor of White on grounds that Burlington's conduct was sufficiently related to White's employment and was sufficiently severe to constitute actionable retaliation under Title VII. The Sixth Circuit Court of Appeals upheld the jury verdict.

The Supreme Court affirmed, but in doing so expanded liability beyond what the Sixth Circuit held. It also established a permissive standard for when the alleged harm is significant enough to support a retaliation claim. Rejecting Burlington's argument that White suffered no real harm because her changed job duties resulted in no loss of pay and she was reimbursed for her pay loss during her suspension, the Supreme Court held that the standard for determining whether retaliatory conduct is sufficiently adverse is whether the conduct would deter a reasonable worker from making a charge of discrimination. Although White was eventually paid in full for her suspension, the Court found that the prospect of an indefinite suspension without pay could deter a reasonable person from filing a discrimination charge.

As a result of this ruling, employers will now have to tread extremely carefully when dealing with employees who have made internal or external discrimination charges. While before, employers could generally be confident that actions such as changes in duties or shifts that had no effect on pay, and actions that had nothing to do with the workplace, would not trigger liability for retaliation, it is now the law that any action that would deter a reasonable person in the employee's position from filing or supporting a discrimination charge may be unlawful. This means that fewer claims will be dismissed as a matter of law and more retaliation cases will be going to a jury, because reasonableness standards are generally jury questions.