Retaliation In The Workplace: Employer Beware

Saturday, July 1, 2006 - 01:00
Philip M. Berkowitz

Editor: Mr. Berkowitz, would you give our readers the background on the recently decided Burlington Northern & Santa Fe Railway Co. v. White case?

Berkowitz: The plaintiff was a woman who operated a forklift for the Burlington Northern & Santa Fe Railway Company. She complained about sexual harassment. Following her complaint, she was removed from her forklift duties and made a track laborer, a less desirable job. She filed a discrimination and retaliation charge with the EEOC. She was then accused of insubordination in another situation and was suspended for 37 days without pay. The company subsequently determined that she had not been insubordinate and reinstated her and awarded her back pay.

The plaintiff filed claims for discrimination, sexual harassment and retaliation. The case went to trial, and the jury awarded her $43,000 in compensatory damages. The district court affirmed that ruling. The case then went to the Sixth Circuit, which, after reversing the award, heard the matter en banc and affirmed the district court judgment.

Editor: How did the case get to the United States Supreme Court?

Berkowitz: The Circuit Courts had articulated differing standards on how to define retaliation under Title VII.

The issue concerned whether the challenged action needed to be employment or workplace related, and how harmful that action must be in order to constitute retaliation. Some courts had held that the retaliation needed to involve an adverse employment action - what they termed a materially adverse change in the terms and conditions of employment. Others took an even more restrictive view, holding that actionable retaliation must involve hiring, firing, promoting, compensation, and the like. Some courts, though, held that the plaintiff need show only adverse treatment, or that the employer's action would have been material to a reasonable employee - that is, it would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination. The Supreme Court granted certiorari to resolve these disparate viewpoints.

Editor: What were the theories that the plaintiff's attorneys utilized?

Berkowitz: The plaintiff's lawyers argued for an expansive reading of the Title VII. They argued that the idea behind the anti-retaliation provisions was to protect employees' rights. They noted that while Title VII's description of unlawful discrimination makes specific reference to terms and conditions of employment, this language is absent from the provision discussing unlawful retaliation. They argued that Congress could have made it clear that retaliatory conduct would have to be tied to the terms and conditions of employment but had not taken that step.

The employer's attorneys (and the U.S. Solicitor General) felt, in contrast, that Title VII's definition of retaliation should be read consistently with the discrimination definition, requiring that discrimination must be tied to terms and conditions of employment in order to be actionable.

Editor: And the ruling of the Supreme Court?

Berkowitz: The ruling was unanimous, with Justice Alito concurring in the result. The majority adopted a liberal definition of retaliation and found that the employee need not show that the retaliation was tied to employment. Citing examples of an employer filing false criminal charges against an employee or causing someone to bring threats against him offsite, the majority held that actionable retaliation can take place outside the workplace.

The majority did hold that in order for the retaliation to be actionable, it must be "materially adverse." That is, the plaintiff has to show that a reasonable employee would have found the challenged action sufficiently adverse to dissuade him from bringing a claim of discrimination. The Supreme Court here is saying that there must be an objective standard for what a reasonable employee would find retaliatory.

Justice Breyer's two-word sentence - "Context matters." - is the touchstone of this decision. Thus, the standard is objective, and whether conduct is actionable may change depending on the worker's circumstances. Justice Breyer provided the example of a change in work schedule, which may make little difference to most workers, but may matter a great deal to a young mother with children.

The employer had also argued that changing the plaintiff's job responsibilities from operating a forklift to track labor duties could not constitute discrimination because her job description cited both duties. But the Court refused to accept that limitation and noted that, given the context, such a change could have dissuaded her from bringing a claim.

The Court also rejected the employer's argument that the suspension could not constitute retaliation because they had reinstated the plaintiff and given her back pay. The Court said that a 37-day suspension without pay could not be cured by reinstatement and back pay, and that such a suspension would be a serious hardship for some people and would dissuade them from filing a claim.

Justice Alito agreed with the outcome here, but he thought this particular test was unworkable.

Eight Justices agree that the employee's right to file a retaliation charge is something that should be protected, even if the retaliation is not strictly tied to workplace conduct. And their recognition that context matters means that employers may find it increasingly difficult to win summary judgment on retaliation claims, which are often factually intensive.

Editor: Would you share with us the implications that this case has for employers?

Berkowitz: Meeting and avoiding retaliation claims has always been more challenging for employers than meeting discrimination claims. Human nature being what is, it is easy to assume that a person accused of wrongful or illegal conduct will resent the accusation, and may act upon it. And it is in the retaliation piece that significant damage awards, including punitive damages, emotional distress damages and consequential damages, lie. These awards can greatly exceed any award that might have been made for the underlying discrimination claim.

To meet the challenge, employers need to place renewed focus on coaching and training employees. Supervisors and even co-workers need to understand that how they react to accusations of this nature can result in liability not only to the company but even to themselves. Thus, their conduct after receiving notice of a charge like this is crucial. They must behave in a professional manner, notwithstanding what is often the very personal nature of these accusations. This decision will encourage retaliation claims, and employers need to be prepared.

Please email the interviewee at with questions about this interview.