Legal Alert: Supreme Court to Address Adverse Employment Action in Retaliation Claims

Date   Dec 7, 2005
The U.S. Supreme Court has agreed to review a case that should resolve a split of authority among the Federal Appeals Courts regarding what type of conduct a plaintiff must establish to support a retaliation claim under Title VII of the 1964 Civil Rights Act.

The U.S. Supreme Court has agreed to review a case that should resolve a split of authority among the Federal Appeals Courts regarding what type of conduct a plaintiff must establish to support a retaliation claim under Title VII of the 1964 Civil Rights Act. See Burlington Northern & Santa Fe. R. Co. v. White, 74 USLW 3130 (Dec. 5, 2005). The Sixth U.S. Circuit Court of Appeals decision the Court agreed to review is White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789 (6th Cir. 2004).

The Sixth Circuit case involved a plaintiff, White, who was transferred to a more physically demanding job after she made an internal complaint of sexual harassment. However, White's pay and benefits were not reduced. After the transfer, White filed an EEOC charge claiming sex discrimination and retaliation. Approximately two months later, White filed another EEOC charge. Three days after Burlington Northern received the second EEOC charge, White was suspended without pay for insubordination. White grieved the suspension and, 37 days later, was reinstated with full back pay.

White subsequently sued Burlington Northern in federal court for sex discrimination and retaliation in violation of Title VII. The case went to trial and the jury returned a verdict in favor of Burlington Northern on the sex discrimination claim and in favor of White on the retaliation claim. Burlington Northern argued that it was entitled to judgment as a matter of law on the plaintiff's retaliation claim because neither the 37-day suspension without pay nor the transfer were adverse employment actions for the purposes of a Title VII retaliation claim. The trial court denied this motion and the employer appealed this decision to the Sixth Circuit.

The Sixth Circuit affirmed the trial court's decision, holding that the 37-day suspension without pay (even though the company ultimately reinstated the plaintiff with back pay) and the transfer to a more arduous and "dirtier" job were adverse employment actions sufficient to form the basis of a retaliation claim.

Title VII prohibits an employer from discriminating against any employee because he or she has opposed an employment practice made unlawful by Title VII or because he or she "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII. The statute itself does not define the term "discriminate against," but courts have interpreted this term to mean that not just any discriminatory act constitutes discrimination under Title VII. Instead the plaintiff must show that he or she was subjected to an "adverse employment action" to support a claim under Title VII.

However, federal courts and the EEOC have interpreted the term "adverse employment action" in various ways. The Fifth and Eighth U.S. Circuit Courts of Appeal have held that for an adverse employment action to support a Title VII retaliation claim, it must constitute an "ultimate employment decision," such as hiring, granting leave, discharging, promoting, and compensating. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).

The EEOC has interpreted "adverse employment actions" for the purposes of Title VII retaliation claims to be "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity." The Seventh and Ninth U.S. Circuit Courts of Appeal have adopted a similarly broad definition of adverse employment action in retaliation claims. See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000); Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir.1996).

The Sixth Circuit did not adopt either of these standards, but noted that it has, "over the last twenty years given some shape to the definition [of adverse employment action] by describing the kinds of material adverse employment actions that rise above the level of trivial . . . it is impossible to list every possible employment action that falls into the definition of adverse employment action and a court must consider 'indices that might be unique to a particular situation'."

In this case, the Sixth Circuit found that White's 37-day suspension without pay, followed by reinstatement with back pay, was an adverse employment action sufficient to support a claim of retaliation under Title VII. The court held that this is not the type of trivial employment action that the adverse employment action standard was designed to filter. Additionally, according to the court, the reinstatement of the plaintiff with back pay did not make her whole because it cut off her claims for damages authorized by Title VII, as amended by the 1991 Civil Rights Act, such as interest on the back pay, attorney fees, emotional suffering and punitive damages. The court noted, however, that a suspension with pay and full benefits pending a timely investigation into alleged wrongdoing would not constitute an adverse employment action under its interpretation of that term.

The court also held that the transfer of the plaintiff from forklift operator to a standard track laborer job was an adverse employment action because it involved a loss of prestige and more arduous and "dirtier" job duties. While a majority of the Sixth Circuit judges agreed on the decision in the case, five of the judges thought the court should have adopted the "reasonably likely to deter" standard because this standard is more consistent with the statutory language of Title VII, Congressional intent, and Supreme Court case law.

To resolve the split of authority regarding what type of action is sufficient to support a Title VII retaliation claim, the U.S. Supreme Court has agreed to review this case.

Employers' Bottom Line:

Retaliation claims can be some of the most difficult employment discrimination claims to defend. Hopefully, the Supreme Court's decision in this case will provide some guidance to employers regarding such claims. However, employers should always give careful consideration to any employment action that could be considered adverse, if that action is directed toward an employee who recently engaged in protected activity, such as complaining of discrimination or participating in an agency investigation of a discrimination charge. While employers are not prohibited from taking adverse actions against such employees, where the action is warranted, it is a good idea to consult experienced employment counsel before doing so to help preclude the likelihood of a retaliation lawsuit.

If you have any questions regarding the issues addressed in this Alert or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.