Burlington Northern & Santa Fe Railway Co. v. White, Sheila (06/22/2006)

Question presented: Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment" (including a temporary suspension rescinded by the employer with full back pay or an inconvenient reassignment); for any adverse treatment that was "reasonably likely to deter" the railway from engaging in protected activity; or only for an "ultimate employment decision?"

BY CAROLINE MOSES, MEDILL NEWS SERVICE

Sheila White was the only woman in her department of forklift operators at Burlington Northern's Memphis train yard in 1997. After only a few months on the job, White complained of sexual harassment by her boss. She was suspended as a result of the complaints.

A few days after her suspension, the company told White she was getting transferred to track laborer duties, because other employees complained that White was given the forklift job over more experienced male employees. The track laborer job had the same pay and benefits, but required "dirtier" and "more strenuous" work.

White responded to the re-assignment by filing complaints with the Equal Employment Opportunity Commission for sexual discrimination and retaliation. Approximately six months after White was moved to track laborer she was suspended for alleged insubordination. White's pay was withheld for 37 days. She was eventually given back pay when she was found not to have been insubordinate.

White decided to sue Burlington Northern in federal court, claiming her job reassignment and pay suspension were retaliatory acts under Title VII of the Civil Rights Actof 1964. Title VII gives employees the right to take action against workplace discrimination based on sex, race, or other individual characteristics without having to fear employer retaliation. But unlike the anti-discrimination provision of Title VII that only deals with conditions of race, color, religion, sex, or national origin, the anti-retaliation provision of Title VII prohibits retaliatory discrimination unconditionally. However, there is no uniform standard of law to determine what constitutes employee retaliation.

After a one week trial, a jury awarded White $43,500 in damages for her claims of retaliation under Title VII and $55,000 in attorney's fees, but the jury awarded no punitive damages. The district court had instructed the jury that punitive damages may be considered if White showed by "clear and convincing" evidence that Burlington Northern acted "either intentionally, recklessly, maliciously, or fraudulently."

Initially, a divided 6th Circuit Court of Appeals panel reversed, siding with Burlington Northern that its actions toward White were not "ultimate employment decisions" because no final actions were taken against White. Therefore, the actions did not constitute retaliation. Because the majority found that White failed in her retaliation claim, it considered any dispute over punitive damages and attorney's fees moot.

The dissenting opinion disagreed, reasoning that Burlington's actions against White were sufficiently disruptive of her job responsibilities that they constituted an ultimate employment decision.

White appealed, asking the full circuit of judges to re-hear the case.

By an 8-5 vote, the 6th Circuit decided on a different standard of retaliatory behavior: "materially adverse change." In so doing, it rejected the "ultimate employment action" doctrine as untenable. Using its new standard, eight of the judges decided White's reassignment and her suspension constituted "adverse employment actions." Therefore, the majority found, the actions constituted retaliation under Title VII, and the court reinstated White's award.

Five of the judges agreed that Burlington Northern's actions constituted retaliation, but they reached the same conclusion using a different standard: any actions that are "reasonably likely to deter" employees from complaining about discrimination.

The 6th Circuit struggled because although it recognized that Congress did not intend for "trivial workplace dissatisfactions" to constitute retaliation, the judges could not agree upon what actions are considered trivial and which are considered substantial.

"Instead of requiring district courts to determine on a case-by-case basis what actions by an employer are reasonably likely to deter an employee from engaging in protected activity, we have over the last twenty years given some shape to the definition by describing the kinds of material adverse employment actions that rise above the level of trivial," wrote Judge Julia Smith Gibbons. "Since the adverse-employment action element developed by this Circuit is an exception to a broad, strictly literal reading of Title VII's anti-discrimination provisions, we will continue to define the exception narrowly so as not to frustrate the purpose of Title VII while deterring lawsuits over trivial matters."

Because the full circuit reinstated White's claim and her jury award, it also addressed the issues of attorney's fees and punitive damages. Though all the judges agreed to reinstate the attorney's fees, they divided on the issue of punitive damages, with eight judges allowing them and five dissenting.

It was apparent in the 6th Circuit's divided opinion that there was also a conflict in the circuits on the standard to be used for addressing retaliatory discrimination under Title VII.

The 5th and 8th circuits use the "ultimate employment decision" standard, meaning only actions like demoting, discharging, or reducing the pay of an employee constitute retaliation.

The 6th Circuit and eight other circuits use the "materially adverse change" basis of measurement. Using this standard the 6th Circuit found that White's move to a less desirable job and her suspension that caused emotional distress constituted "materially adverse changes" in the way she was treated after her sexual harassment complaints.

The 9th Circuit measures retaliation by any employer action that is "reasonably likely to deter" an employee from complaining about discrimination. This standard, also urged by five judges on the 6th Circuit bench, is the most protective of workers.

On Dec. 5, 2005, the U.S. Supreme Court accepted review in the case, limited to the first question in Burlington Northern's petition.

"Not every trifling event in the workplace should give rise to events of retaliation," said Carter Phillips, counsel for Burlington Northern, preparing to argue his 50th case before the Supreme Court. "If you are just transferred from one set of responsibilities to another, there are no adverse affects."

The Equal Employment Advisory Council argues that the 9th Circuit's standard of retaliation is too restricting for employers and urges the Court to adopt the 6th Circuit's standard of retaliation as law. The EEAC, which is the nation's largest nonprofit association of employers, advocates that standard because unlike the anti-discrimination provision of Title VII that only deals with conditions of race, color, religion, sex, or national origin, the anti-retaliation provision of Title VII prohibits retaliatory discrimination unconditionally.

Approximately two times as many claims of retaliatory discrimination were filed in the last few years than were filed a decade ago, according to the EEAC. For this reason, the EEAC says it seeks from the Court a set of uniform guidelines determining what constitutes retaliatory behavior.

"We encourage the Court to adopt what we understand as an employment standard," said Ann Reesman who filed a brief in support of Burlington Northern on behalf of the EEAC. "A ‘materially adverse action' is what the standard for employment action should be in this case."

On June 22, 2006, the Court held 9-0 for White, concluding that employers can be held liable for retaliatory discrimination for adverse treatment such as that done in this case.

Justice Stephen Breyer wrote the Court opinion.

"We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant," wrote Justice Breyer. "In the present context 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."