Supreme Court Expands Breadth of Potential Employee Claims for Alleged Retaliation
In a prior article on class actions and class action defense, we discussed the rise of employment law class actions. One area that had not yet been widely subject to class actions consists of alleged retaliation claims. Every employment law practioner knows that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a). To protect employees who seek to establish such employment discrimination, Congress included an “anti-retaliation” provision in Title VII that prohibits discrimination against one who has “made a charge, testified, assisted, or participated” in a Title VII matter, 42 U.S.C. § 2000e-3(a). By their nature, such claims are “class action resistant” because they are based on the case-by-case treatment of the employee and the specific conduct against which the employer alleges seeks to retaliate. That may change.
On June 22, 2006, the United States Supreme Court fundamentally altered the landscape of employment law retaliation claims. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. ___, ___ S.Ct. ___ (2006). Title VII retaliation claims require proof of an “adverse employment action” but courts have disagreed on what satisfies this requirement. The Supreme Court summarized the issues presented and its answers as follows:
The Courts of Appeals have come to different conclusions about the scope of the Act’s anti-retaliation provision, particularly the reach of its phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?
We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those)employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Slip Opn., at 1-2.
Sheila White was the only woman hired by Burlington Northern & Santa Fe Railway Company to work in the Maintenance of Way department at Burlington’s Tennessee Yard. The evidence suggests she was hired to operate the forklift, and this soon became her “primary responsibility.” A few months later, White complained about her immediate supervisor: ultimately, he was suspended for 10 days and required to attend a training session in sexual harassment. Soon thereafter, however, White was removed from forklift duty to standard track laborer tasks. Slip Opn., at 2-3. White filed a complaint with the EEOC (Equal Employment Opportunity Commission) alleging that the reassignment constituted unlawful gender discrimination and retaliation. This was followed by a second retaliation charge. Following a 37-day suspension White served without pay based on an insubordination charge that Burlington ultimately determined to be without merit, and Burlington’s reinstatement of White with backpay for the 37-day period, White filed a third retaliation charge with the EEOC. Slip Opn., at 3.
After exhausting her administrative remedies, White filed a Title VII action against Burlington in federal court alleging, in pertinent part, unlawful retaliation by changing her job responsibilities and by suspending her without pay for 37 days. A jury awarded White damages on both grounds and Burlington appealed. Slip Opn., at 3-4. The Sixth Circuit initially reversed the judgment, White v. Burlington Northern & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002). The Court sitting en banc affirmed the judgment, but disagreed on the proper standard that applied to White’s claims. Compare White v. Burlington Northern & Santa Fe Ry. Co.364 F.3d 789, 795- 800 (6th Cir. 2004), with id., at 809 (Clay, J., concurring). Slip Opn., at 4.
Circuit court decisions interpreting Title VII’s anti-retaliation provision have been all over the map. As the Supreme Court noted,
[Title VII] forbids employer actions that “discriminate against” an employee (or job applicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” §2000e-3(a). No one doubts that the term “discriminate against” refers to distinctions or differences in treatment that injure protected individuals. [Citations.] But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. 364 F.3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must “resul[t] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Von Gunten v. Maryland, 243 F. 3d 858, 866 (4th Cir. 2001); see Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an “ultimate employment decisio[n]” standard, which limits actionable retaliatory conduct to acts “‘such as hiring, granting leave, discharging, promoting, and compensating.’” Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); see Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997).
Other Circuits have not so limited the scope of the provision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee,” which in contexts like the present one means that it would likely have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005); see Rochon v. Gonzales, 438 F.3d 1211, 1217-18 (D.C. Cir. 2006). And the Ninth Circuit, following EEOC guidance, has said that the plaintiff must simply establish “‘adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’” Ray v. Henderson, 217 F. 3d 1234, 1242-43 (9th Cir. 2000). The concurring judges below would have applied this last mentioned standard. 364 F.3d, at 809 (opinion of Clay, J.).
After a detailed analysis, the Court concluded:
. . . Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called “ultimate employment decisions.” Slip Opn., at 12.
Further, with respect to the “injury” or “harm” required to fall within the scope of an anti-retaliation claim, the Supreme Court held, “In our view, a plaintiff 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.”‘” Slip Opn., at 13 (citation omitted). The Court intends the term “material adversity” to “separate significant from trivial harms.” Id. The Court also intends the standard to be viewed objectively, from the standpoint of a “reasonable employee.” Id., at 14 (italics in original). Finally, the standard is “general” because “the significance of any given act of retaliation will often depend upon the particular circumstances.” Id.
Finally, the Court clarified that the standard it enunciated “is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint,” and believes that “[b]y focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, . . . this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.” Slip Opn., at 15. The Court’s analysis of the evidence supporting the jury’s verdict is interesting, and the reader is encouraged to download the Court’s opinion for review. For present purposes, we add only that the Court expressly stated that “reassignment of job duties is not automatically actionable.” Slip Opn., at 16.
Will Burlington v. White lead to an increase in class actions alleging retaliation claims? Hopefully not. We are encouraged by the Court’s observation that “the significance of any given act of retaliation will often depend upon the particular circumstances.” We would have preferred that the opinion simply acknowledge that acts of retaliation “will” depend on the particular facts, rather than “will often” require such an analysis. Based on the current law surrounding class action defense, we believe it would be exceptionally difficult – if not impossible – for a class action to be certified in such a case.
NOTE: In a concurring opinion, Justice Alito complained that the Court’s interpretation of the anti-retaliation provision of Title VII “has no basis in the statutory language and will, I fear, lead to practical problems.” Slip Opn., Alito, J, concurring, at 1. Justice Alito favors reading the term “discriminate” in § 704(a) to mean “the discriminatory acts reached by § 703(a)-chiefly, discrimination ‘with respect to . . . compensation, terms, conditions, or privileges of employment.'” Id., at 2-3. This interpretation would “provide an objective standard that permits insignificant claims to be weeded out at the summary judgment stage, while providing ample protection for employees who are subjected to real retaliation.” Id., at 3. By contrast, “the majority’s interpretation contains a loose and unfamiliar causation standard.” Id., at 7. Justice Alito opines that “[e]specially in an area of the law in which standards of causation are already complex, the introduction of this new and unclear standard is unwelcome.” Id. In sum, Justice Alito “would not adopt the majority’s test but would hold that §704(a) reaches only those discriminatory practices covered by §703(a).” Id.