U.S. Supreme Court Expands the Scope of the Anti-Retaliation Provision of the Civil Rights Act: Revision Makes it Easier for Employees to Claim Unlawful Retaliation

June 26, 2006

Last Thursday, the U.S. Supreme Court decided the case of Burlington Northern & Santa Fe Railway Co. v. White, a case involving the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.  The case resolved a dispute among the Federal Courts of Appeal and ruled that the Act’s anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.  The Court concluded that an employer’s actions could be found to be retaliatory if the actions “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”  The ruling makes it significantly easier for employees to show they suffered retaliation after accusing employers of discrimination, and may lead to more litigation against employers.

The Court voted 9-0 that a female forklift operator was improperly punished when her employer suspended her without pay for 37 days including a Christmas holiday and reassigned her to more physically demanding duties as a yard worker after she had accused her supervisor of sexual harassment.  Although the employer cleared the female employee of the insubordination charges which led to her suspension and provided her with back pay, the Court noted that “many reasonable employees would find a month without a paycheck to be a serious hardship,” and that “an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.”

The specific question addressed was whether an employer may be held liable for retaliatory discrimination under Title VII for any adverse treatment that was “reasonably likely to deter” the employee from engaging in a protected activity.  Before this ruling, many courts held that an employer was only liable for retaliatory discrimination if the action taken was an “ultimate employment decision,” meaning an action such as demoting, discharging, or reducing the pay of an employee.  Other courts held previously that an employer was only liable if the challenged action resulted in an adverse effect on the “terms, conditions, or benefits of employment.”  Now, the U.S. Supreme Court has decided that the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.  Under the Court’s new standard, retaliation is defined as any action taken by an employer that would dissuade “a reasonable worker from making or supporting a charge of discrimination.”

Employers have long known that they may face a claim of retaliation if they took an adverse employment action against an employee who had complained of discrimination.  The new standard set by the Supreme Court last week will likely make it easier for plaintiffs to prevail in retaliation claims and make retaliation claims more likely. 

Employers will be wise to carefully review any job change affecting an employee who has complained of discrimination.  Please feel free to call any of the attorneys in the Frost Brown Todd Labor and Employment Department if we can assist you in evaluating the risks associated with responding to complaints of discrimination and making any decisions about employees who have made complaints of discrimination.

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