Supreme Court Broadens the Scope for Retaliation Claims Under Title VII

Plaintiff, Sheila White, was employed by Burlington Northern & Santa Fe Railway (“BNSF”) as a forklift operator in their Memphis, Tennessee railway yard. When she complained to her supervisor alleging sex discrimination she was reassigned to another position. White’s new position entitled her to the same pay and benefits as her previous position, but her new position was widely regarded among employees as less desirable. White then filed a complaint with the EEOC over this job change. Shortly thereafter, White was accused of insubordination and suspended without pay. The company’s internal investigation exonerated White of the insubordination charges. BNSF reinstated White and awarded her back pay for the 37 days she was suspended.

White sued BNSF claiming that the reassignment and suspension were in retaliation for her earlier complaint of sex discrimination and having filed a charge with the EEOC. The jury awarded White $43,500.00 in damages as well as medical expenses and attorney’s fees.

On appeal, the Sixth Circuit Court of Appeals reversed the trial court’s decision. Following the appellate court’s original decision, the Sixth Circuit sat, en banc, and upheld the jury verdict. The case was then appealed to the United States Supreme Court.

The Supreme Court ruled against BNSF and found that the employer’s actions in transferring White to a less desirable job and her suspension constituted actionable retaliation under Title VII. Prior to the ruling in Burlington Northern, a retaliation claim was dependent upon the plaintiff proving an “ultimate employment decision” such as termination or failure to promote. Burlington Northern changes the legal standard for determining whether a retaliation claim under Title VII can be sustained. The new standard, will permit an employee to state a claim for retaliation under Title VII if they have been subject to any employment action that materially injures or harms the employee who has complained of discrimination and that would discourage a reasonable employee from filing a Title VII claim.

The ruling in Burlington Northern broadens the scope of actionable retaliation claims and expands the potential liability of employers for employment decisions that impact employees that have made internal discrimination/harassment complaints or filed formal charges or lawsuits.

Tips for Employers

• Employers should take extra precaution whenever they alter the terms and conditions of employment of an employee who has complained of discrimination or has made a claim to the EEOC or filed a formal lawsuit, particularly where the change is made relatively close in time to the complaint, charge or lawsuit. Courts are now required to consider the intangible differences between positions, such as prestige and desirability.

• Merely maintaining an employee’s pay rate and benefit structure will not be a complete defense to Title VII retaliation claims. If the action taken by the employer is likely to discourage a reasonable employee from making a claim to the EEOC, then the employer may be found to have violated Title VII.

• What the Supreme Court has termed “trivial harms” will not rise to the level of an actionable claim. Trivial harms include personality conflicts with other employees, perceived and actual favoritism or snubbing, and “sporadic” abusive language such as gender related jokes and gender related teasing. These so-called trivial harms, while they are not appropriate, are part of the common workplace environment and were not the types of behavior that Title VII was designed to prohibit according to the Court.

• Reassigning an employee to a new position will not be a per se Title VII violation. In ruling for the plaintiff, the Court took into consideration that the reassignment was considered harder, dirtier and less prestigious than the employee’s prior pre-complaint position.