Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits not only employment discrimination on the basis of race, color, religion, sex or national origin, but also retaliation against an employee or applicant for either opposing any practice that is unlawful under Title VII or participating in any Title VII proceeding or investigation. It is believed by many that retaliation claims are more dangerous to employers than discrimination claims, given a judge or jury's inclination to conclude that retaliation is a likely response to a claim of discrimination, even (or especially) if the claim is unmeritorious. On June 22, 2006 the Supreme Court held that Title VII's prohibition against retaliation is violated if an employer takes a materially adverse action that might dissuade a reasonable worker from making or supporting a charge of discrimination, because the worker engaged in protected activity. Burlington Northern v. White, 2006 U.S. Lexis 4895 (2006).
This holding significantly expands the scope of employer conduct regulated by Title VII in many circuits. It has long been held that in order for a violation of the antidiscrimination provisions of Title VII to occur, the employer must engage in conduct that constitutes an adverse employment action. In other words, in order for discrimination to be unlawful, there must be an impact upon the terms, conditions or privileges of employment, such as a decision not to hire, not to promote, not to grant a raise, or to discharge. Circuits such as the Third, Fourth, Fifth, Sixth, and Eighth have applied the same or an even more restrictive standard in retaliation cases, while the District of Columbia, Seventh and Ninth Circuits have applied a less restrictive standard. In Burlington Northern, the Supreme Court made clear that materially adverse actions can constitute unlawful retaliation, even if the terms and conditions of employment such as those described above are not affected. This means that employer actions that would not have enough of an impact upon an employee to constitute unlawful discrimination may have a sufficient impact to form the basis for a viable retaliation claim. The Court also ruled that retaliatory adverse actions outside of the workplace are actionable.
A review of the facts in Burlington Northern illustrates the type of conduct that may constitute unlawful retaliation, and serves as a basis for analyzing the steps that employers may take to help reduce their potential exposure to liability. Sheila White was the only woman employed in the Burlington Northern Maintenance of Way department in its Tennessee Yard. Her primary duty was operating a forklift. She initially made an internal complaint that her supervisor had made inappropriate and insulting remarks to her in front of co-workers. As a result of this complaint, her supervisor was suspended for ten days and ordered to attend a sexual harassment training session. However, when the company notified White of the disciplinary action it was taking, it also informed her that she would be reassigned from operating a forklift to standard laborer duties, which were dirtier and more arduous to perform.
White filed a charge with the Equal Employment Opportunity Commission ("EEOC") claiming that the reassignment was gender discrimination and retaliation for the complaint she had made against her supervisor. She filed a second charge with the EEOC asserting that she had been placed under surveillance. Shortly after filing the second charge, she was suspended without pay for insubordination, in connection with a disagreement she had with a supervisor. White filed an internal grievance, which resulted in a determination by Burlington Northern that she had not been insubordinate. Although the company reinstated White and awarded her back-pay for the 37 days she was suspended, she filed an additional retaliation charge with the EEOC as a result of the suspension. White ultimately filed suit against the company, claiming that changing her job and suspending her without pay were unlawful retaliation in violation of Title VII. A jury returned a verdict in her favor on both claims and awarded her $43,500 for compensatory damages.
The Burlington Northern opinion is based upon both the language of and intent underlying Title VII. As to the latter, the Supreme Court reasoned that Title VII's anti-retaliation prohibition is designed to prevent employers from interfering with employees' attempts to secure or advance their rights under Title VII. This objective could not be achieved, the Court reasoned, by only prohibiting retaliatory employer conduct that results in adverse employment actions. To elucidate this point, the Court gave the following examples of retaliation held to be actionable in circuit court decisions: (a) the FBI's refusal to investigate death threats against an agent and his wife, contrary to FBI policy; and (b) an employer's filing false criminal charges against a former employee. As the Court explained: "purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id . at *20 (citation omitted).
In an attempt to delineate reasonable boundaries for the types of employer actions that can constitute retaliation, the Court imposed two requirements: (1) the retaliation must produce an injury or a harm; and (2) "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." Id . at *26-27 (internal quotations and citations omitted). Although the Court described this standard as an objective one, it made very clear that whether conduct will be significant enough to constitute a violation will depend upon the context, because "an act that would be immaterial in some situations is material in others." Id. at *29-30 (citation and internal quotation omitted).
The Court used broad language in explaining the sorts of conduct that will not rise to the level of a violation, which may provide some comfort to employers:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 765, 80 (1998); see Faragher, 524 U.S., at 788 (judicial standards for sexual harassment must "filter out complaints attaching to the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing"). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and "snubbing by supervisors and co-workers" are not actionable under 704(a)). Id . at *27.
However, the Court also discussed arguably minor slights that in certain contexts would nevertheless be actionable. The Court noted that changing an employee's work schedule may typically be unimportant but could have an enormous impact upon a young mother with school age children (and presumably upon any person with child-care responsibilities). Similarly, while a supervisor's failure to have lunch with an employee would typically not be actionable, excluding an employee from regularly scheduled training lunches that impact upon the employee's advancement could give rise to a violation. Id . at *29. In short, it will be critical to engage in a detailed factual analysis of the context in which alleged retaliation occurs, in order to determine whether it is merely a trivial slight or unlawful retaliation.
The Court determined that while the reassignment of duties is not always actionable, the record contained ample evidence to support the jury's determination in White's favor. There was testimony that laborer jobs were dirtier and tougher, and that the forklift position was considered a better job. The jury had a basis for determining that the suspension was materially adverse because White and her family had to live without her income and did not know whether she would be reinstated, which she testified caused her to suffer anxiety. In his concurring opinion, Justice Alito suggested that plaintiffs asserting retaliation claims should be held to the same burden of proving materially adverse employment actions as in discrimination cases, and opined that Burlington Northern's conduct met the more stringent standard. Indeed, the more lenient burden of proof endorsed by the Court in Burlington Northern will support findings of discrimination based upon conduct much less egregious than suffered by White.
In light of the broad range of conduct that can be actionable under Burlington Northern and the significant danger that retaliation claims pose, employers should consider the following preventive steps to reduce their potential exposure to retaliation claims and liability:
1. Document the consequences of employee misconduct or performance deficiencies before the employee claims discrimination. The Burlington Northern decision does not eliminate or reduce a plaintiff's burden to prove the causal connection between the alleged retaliatory conduct and protected activity. By documenting the action the employer contemplates before an employee claims discrimination, the employer may prevent an employee from successfully asserting that the action was in retaliation for a discrimination complaint. The Supreme Court held in Clark County School District v. Breeden, that employers are not required to suspend previously planned or contemplated employment actions upon receiving a discrimination complaint. 532 U.S. 268 (2001). By documenting its intentions prior to receiving a complaint of discrimination, the employer is likely to have a reasonable chance of obtaining the dismissal of a retaliation claim through a summary judgment motion since it will be able to show that the allegedly retaliatory conduct was "in contemplation" before the discrimination claim was raised. (Of course, this assumes the absence of other evidence of retaliatory intent.)
2. Document the specifics of employee complaints that may later be characterized by the employee as protected activity. Title VII only prohibits retaliation against employees for engaging in protected activity. As explained in Burlington Northern, "Title VII's anti-retaliation provision forbids employer actions that discriminate against an employee (or job applicant) because he opposed a practice that Title VII forbids or has made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing." 2006 U.S. LEXIS 4895 at *12 (citation and internal quotations omitted). Not all complaints made by employees are protected activity. By documenting the specific nature of the complaint, employers may be able to later prove that the complaint was not protected in the event that litigation ensues.
3. Involve human resources professionals or employment counsel in coaching managers accused of discrimination and in reviewing the treatment of employees who have made discrimination complaints or otherwise engaged in protected activity. Employees who have made discrimination complaints or otherwise engaged in protected activity may be difficult to manage for a variety of reasons. Moreover, the involvement of human resources professionals and legal counsel has often been limited to reviewing adverse employment actions prior to their implementation. Since retaliation claims may now arise out of a much broader range of conduct, a concomitant involvement on the part of human resources professionals or employment counsel is warranted, in order to help avoid retaliation claims.
4. Avoid creating the factual predicate for constructive discharge claims. In Burlington Northern, the plaintiff continued her employment and was awarded compensatory damages in the amount of $43,500. Had she been constructively discharged and lost income as a result, her damages could have been substantially higher. The standard for establishing a constructive discharge is higher than for establishing a violation of Title VII. "A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 146-147 (2004). Even if it is clear to an employer that it is not acting with retaliatory animus, engaging in conduct that could give rise to a constructive discharge retaliation claim will almost always substantially "raise the ante" in the litigation that follows.
5. Consider requiring applicants and employees to arbitrate all employment-related claims. While it appears likely that Burlington Northern will lead to increased litigation, if employers can avoid creating the factual predicate for constructive discharge claims, much of the litigation may be "low stakes." For example, in a case in which a plaintiff claims that he was retaliated against by not being given challenging developmental assignments, the amount of money at issue may well be much lower than the cost of litigation. Employers may face less pressure to settle such claims if they are subject to mandatory arbitration, which is typically less expensive and less burdensome. In addition, requiring mandatory non-binding mediation as a part of an alternate dispute resolution program may even further reduce an employer's litigation costs.
Jonathan D. Wetchler is a Partner at WolfBlock's Philadelphia office. He is an employment lawyer with more than 20 years of experience exclusively in the area of employment counseling and litigation.