Supreme Court Finds Employees Have Greater Protection Under Title VII’s Anti-Retaliation Provision

June 27, 2006

On June 22, 2006, the United States Supreme Court held that Title VII’s anti-retaliation provision is not limited to actions affecting employment terms and conditions, but can cover a much broader range of employer acts. Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259 (2006).
The Facts of the Case: Sheila White was a Burlington Northern employee whose primary job duty was forklift operation. Approximately four months after she was hired, White filed an internal complaint with regard to her supervisor’s inappropriate remarks. Burlington responded by suspending the supervisor and requiring him to attend sexual-harassment training. Marvin Brown, another supervisor in White’s department, informed her that the offending supervisor had been disciplined; however, he also told White that he was removing her from forklift duty. A few weeks later, White filed a complaint with the EEOC, claiming that the reassignment of job duties was sex discrimination and retaliation under Title VII. A few days later, White was involved in a dispute with a supervisor in her department and was suspended without pay for insubordination. White filed an additional retaliation charge with the EEOC for the suspension. The case was eventually heard by a federal jury who found Burlington had retaliated against White in both instances and awarded her $43,500 in compensatory damages. Burlington appealed the decision all the way to the U.S. Supreme Court. The Court upheld the jury verdict.
The Court’s Decision: The Court reviewed the language of Title VII and found the statute’s anti-retaliation provision to be much broader than its anti-discrimination provision. The anti-discrimination provision is limited to “employment” actions, providing that it is unlawful for an employer to “fail or refuse to hire or to discharge…or otherwise to discriminate…with respect to compensation, terms, conditions, or privileges of employment….” 703(a). Conversely, the anti-retaliation provision of Title VII is much broader, providing that it is unlawful for an employer to “discriminate against any of his employees …because he has opposed any practice made unlawful by this subchapter….” 704(a). The Court highlighted this difference, stating:

The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. 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.

No. 05-259 at *8 (emphasis added). The Court further noted that the anti-retaliation provision only protects employees against actions that are materially adverse to a reasonable employee. “[P]etty slights, minor annoyances and simple lack of good manners” are not actionable. Id. at *13-14.
What Wisconsin Employers Need To Know: To avoid retaliation claims, employers must be cautious when handling employee complaints. Steps employers can take to minimize retaliation claims include the following:

Promptly investigate employee complaints;
Limit disclosure of an employee’s complaints to other employees on a “need to know” basis to limit the risk of retaliatory response;
After a complaint is made, remind supervisors that retaliation is prohibited;
Carefully review all future personnel decisions involving the complaining employee. If possible, obtain review by a member of management who has no knowledge of the employee’s complaint; and
Ensure that EEO and anti-harassment policies include anti-retaliation provisions.

An employee will often add a retaliation claim to an underlying employment discrimination claim. In some cases, as in Burlington, an employer may ultimately win the discrimination claim, but lose on the retaliation claim. Employers who proceed carefully after an employee brings a complaint can minimize the risk of an employee bringing a retaliation claim in the first place.
If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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