Scope of Retaliation Claims Expanded by Supreme Court
July 3, 2006
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006
The U.S. Supreme Court on June 22, 2006 expanded the scope of retaliation claims that can be brought by applicants or employees under Title VII of the Civil Rights Act of 1964. In reaching its decision, the court distinguished between the anti-discrimination and the anti-retaliation provisions of the Act. Burlington Northern & Santa Fe Ry Co. v. White.
Anti-Discrimination – The anti-discrimination provisions of Title VII "seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status." These provisions seeks "to prevent injury to individuals based on who they are, i.e., their status."
Anti-Retaliation – In contrast, the anti-retaliation provision "seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees." Thus, the "anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e. their conduct."
Scope of Retaliation – In addressing the scope of retaliation claims, the Supreme Court held as follows:
- Extends Beyond Workplace – The anti-retaliation provision, unlike the anti-discrimination provision, "is not limited to discriminatory actions that affect the terms and conditions of employment," and "extends beyond workplace-related or employment-related acts and harm" (e.g., filing false criminal charges against an employee who filed a complaint).
- Must be Materially Adverse – The anti-retaliation provision protects an individual not from all retaliation (such as petty slights, minor annoyances or lack of good manners), but only "from retaliation that produces an injury or harm." The court stated that the provision "covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant." This means that "the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."
- Reasonable Employee Standard – Fortunately for employers, the court required that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse," because the anti-retaliation’s "standard for judging harm must be objective." The court stated that an objective standard "avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings."
- Standard Stated in General Terms – The court phrased the "standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances," and "context matters." For example, a "schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Or, a "supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination."
- Standard Tied to Retaliation, Not Underlying Conduct – The court also made clear that the "standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint." The court stated that by "focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position," it believes that "this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination."
Bottom Line - The Supreme Court rejected the Fifth and Eighth Circuit’s more restrictive approach to retaliation claims, which had limited actionable retaliatory conduct to acts "such as hiring, granting leaves, discharging, promoting, and compensating" employees, and broadened it to include any employer actions that would be materially adverse to a reasonable employee (including, in some cases, reassignment of job duties and a rescission of a suspension with full backpay). As a result, more employees may file retaliation charges in addition (or subsequent) to their underlying discrimination complaint. Retaliation is already the third most common type of charge filed with the U.S. Equal Employment Opportunity Commission, and the number of such charges will likely rise.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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