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Title VII of the 1964 Civil Rights Act prohibits employers from retaliating against their employees who complain about discrimination. But up until a June unanimous decision by the Supreme Court, employers, lawyers and even lower courts could never be sure what exactly constituted retaliation.

Justice Stephen Breyer, writing for the majority in Burlington Northern & Santa Fe Railway Co. v. White, cleared up the confusion.

"The other thing that they made clear," he said, "was how harmful the retaliatory action must be in order for it to be materially adverse to an employee, and the court said it's got to be something more than trivial."

As Justice Breyer defined "retaliation" in his opinion, they are "employer actions that would have been materially adverse to a reasonable employee or job applicant."

"In the present context," Breyer wrote, "that 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."

The "present context" involved plaintiff Sheila White, who was hired by Burlington in the summer of 1997 as a track laborer and soon after assigned to work the forklift at the railroad company's Tennessee Yard. In September 1997, White complained that her supervisor made disparaging remarks to her and in front of her colleagues. White complained to her "roadmaster," and the supervisor was suspended. White, however, was also reassigned from forklift duty to standard track laborer duties.

After White filed complaints with the Equal Employment Opportunity Commission later that year, her boss had put her under surveillance. Another disagreement with a supervisor followed, and White was suspended without pay. White filed for internal grievance procedures, but it took 37 days before she was reinstated with backpay.

However, White filed another EEOC complaint and took action under Title VII in federal court, claiming that her position change and her suspension encompassed retaliation. The district court found in her favor, and a jury awarded her $43,500 in compensatory damages. A Sixth Circuit court reversed this, but an appellate panel found for White.

Then on June 22, the Supreme Court found for White, with Breyer writing, "Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having 'no income, no money' in fact caused."

The lawyers for the employer in the case claimed, unsuccessfully, that retaliation should be limited to severe punishments, such as a demotion or job termination.

Employers can then no longer perhaps view retaliation in such limited, traditional terms. And they cannot hope to rectify a situation after retaliation may have already been committed. "I think to me in terms of representing a company," Conley said, "is that the company's got to be careful from the beginning. They can't think they can cure what could be a potential retaliatory act by paying the employee backpay. It could still be considered a retaliatory act."

September 1, 2006

Copyright 2006© LRP Publications