Retaliation Redefined

It is well-established that Title VII of the 1964 Civil Rights Act forbids employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. In addition to prohibiting discrimination, the Act also protects employees who complain about discrimination from retaliation by their employers. Most employers readily recognize that firing or demoting an employee for complaining of discrimination is in clear violation of Title VII. However, on June 22^nd, 2006, the Supreme Court of the United States effectively broadened the scope of Title VII's anti-retaliation provision and blurred the lines as to which employment actions rise to the level of unlawful retaliation. Employers must understand that because of this recent decision, retaliation now encompasses more than such ultimate employment decisions as discharge, demotion, or denial of wages.

In Burlington Northern & Sante Fe Railway Co. v. White, the Plaintiff, Sheila White, complained to company officials of sexual harassment by her supervisor. After complaining, White was transferred from her position as a forklift operator to a track laborer, a less desirable and more physically strenuous position. Although the transfer did not amount to a demotion and White did not suffer a pay decrease, the Supreme Court still held that the employer's decision to transfer White constituted retaliation in violation of Title VII. The Court reasoned that the transfer was "materially adverse" to White, and in retrospect, she may not have raised her complaint of discrimination in the first place had she known that an unfavorable transfer would ensue. In attempting to articulate an appropriate standard for defining actionable retaliation, the Court reasoned that if the threat of the employer's action would deter and prevent an employee from opposing unlawful discrimination, then the employer could be liable for retaliation.

The Supreme Court's holding on June 22^nd redefines retaliation so that it now includes any "materially adverse" job action. Although the Burlington Northern decision was an attempt by the Court to clarify the standard for determining unlawful retaliation, the case will likely create even further confusion because it fails to set a practical standard that employers can easily apply in the workplace. Under this precedent, a legitimate decision to transfer an employee could be construed as retaliation making it very difficult for employers to predict Title VII compliance. Therefore, employers must be more sensitive than ever in considering employment actions directed at employees who have previously complained about discrimination in the workplace.

For further information, please contact Mark Ford or Ryan Poor.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.