The Supreme Court recently expanded the protection provided to employees who bring claims of retaliation under Title VII of the Civil Rights Act of 1964. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. —, 126 S.Ct. 2405 —, L.Ed.2d — (2006).

In White, the plaintiff was a forklift operator in the employer’s railroad maintenance department. The employee was also the only woman working in the entire maintenance department. The employee complained to a railroad official that her supervisor repeatedly made insulting and inappropriate remarks to her in front of male employees. After an investigation, the employer suspended the supervisor. However, the employer reassigned the employee from operating a forklift to standard laborer tasks.

The employee filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the reassignment was unlawful gender discrimination and retaliation. Subsequently, she was suspended without pay for insubordination. The employer later reinstated her and awarded her backpay for the 37 days she was suspended. The suspension led to another EEOC retaliation charge.

The employee filed a lawsuit against the employer claiming that the employer’s actions in changing her job responsibilities and suspending her for 37 days amounted to unlawful retaliation under Title VII. A jury awarded her compensatory damages. In affirming, the Sixth Circuit applied the same standard for retaliation that it applies to a substantive discrimination offense, holding that a retaliation plaintiff must show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions” of employment.

The Supreme Court concluded that Title VII’s anti-retaliation provision does not confine the actions it forbids to an adverse employment action. Title VII’s anti-retaliation provision covers those employer actions that would have been materially adverse to a reasonable employee or job applicant. The employer’s actions must be harmful to the point that they could dissuade a reasonable worker from making or supporting a charge of discrimination.

The Court then applied this standard to the facts of the White case and held that a reassignment of duties can constitute retaliatory discrimination where both the former and present duties fall within the same job description. The track laborer duties were more arduous and dirtier than the forklift operator position, and the latter position was considered a better job by male employees who resented White for occupying it. The Court held that a jury could reasonably conclude that the reassignment would have been materially adverse to a reasonable employee. Also, the Court held that many reasonable employees would find a month without pay a serious hardship and an indefinite suspension without pay could well act as a deterrent to the filing of a discrimination complaint, even if the suspended employee eventually receives backpay. What does this mean for employers? For one, the Court’s holding derails an employer’s “no adverse employment action” defense. Further, the new standard for Title VII retaliation is lower and a Title VII retaliation plaintiff need only show that the challenged action might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Any given act of retaliation will be analyzed based upon the particular circumstances, which may limit summary judgments. Finally, although the Court’s holding only concerns retaliation under Title VII, federal courts may use this reasoning as to other statutory retaliation provisions.

Employers should heed this case as a warning not to fall asleep at the switch or get sidetracked regarding Title VII retaliation claims.

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