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On June 22, 2006, the United States Supreme Court rendered entered a new, sweeping decision concerning retaliation claims under Title VII, which gives victims of retaliation greater protection than victims of actual discrimination. In Burlington Northern & Santa Fe Railroad v. White, an opinion authored by Justice Breyer, the Supreme Court decided for the first time that an employer may be liable for retaliation if an employee can show that the employer’s actions might well have “dissuaded” a reasonable worker from making or supporting a charge of discrimination.

In other words, the anti-retaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment, but can reach actions by an employer that cause harm to the employee outside the workplace. As the Supreme Court noted, “context matters” when deciding the issue of retaliation. Thus, a change to a work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Likewise, exclusion from lunch would normally be trivial, but exclusion from a weekly training lunch that might impair professional development would be significant.

In this case, Sheila White, the lone female employee in the Maintenance of Way Department, complained about sexual harassment by her supervisor. Burlington Northern investigated, suspended the supervisor for 10 days, and ordered him to attend sexual harassment training. At the same time, Burlington Northern reassigned Ms. White to less desirable duties, claiming that it was responding to the complaints of a co-worker, a “more senior man.” A number of events later transpired, including a charge of insubordination against Ms. White, and a suspension without pay for 37 days. The Supreme Court found that reassignment to dirtier, harder work and going more than a month without a paycheck would be a “serious hardship” to most employees and would be “materially adverse” to the employee, thus supporting a verdict for retaliation.

Justice Alito wrote a separate opinion agreeing with the result, but not the reasoning. In his view, the majority departed too far from the language of the statute.

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