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Lois Carter Schlissel Authors, "Employers Must Proceed With Caution As They Navigate the Road to Retaliation"

Nov 22, 2006Employment Law

In its recent decision in Burlington Northern & Santa Fe Railway Co. v. White, the United States Supreme Court significantly changed the way courts throughout the country will evaluate retaliation claims. Small and midsize companies with as few as fifteen employees now must consult a new roadmap when a worker complains of retaliation.

Employers with 15 or more employees “engaged in an industry affecting [interstate] commerce” (and nearly every business affects commerce) are subject to the provisions of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” In addition to protecting victims of discrimination, Title VII also protects employees who report discrimination or who provide information in investigations or are witnesses in proceedings regarding alleged discrimination. The statute specifically makes it unlawful for employers to retaliate against employees who have engaged in such protected activities. The retaliation provisions of Title VII apply not only to an employee claiming to be the victim of discrimination, but also to other employees who report or give information about conduct they believe to be a violation of Title VII.

Employers who violate this law are subject to tough financial penalties. In addition to “compensatory damages” which cover the injuries suffered by an employee as a result of unlawful retaliation, employers who engage in unlawful retaliation may also be required to pay substantial punitive damages as well as the employee’s attorney’s fees. Often the punitive damages and attorney’s fees imposed against an employer far exceed the amount awarded to compensate the employee for his or her damages.

Until June 2006, most courts required an employee claiming that he or she was retaliated against in violation of Title VII to show that the alleged retaliatory conduct directly and materially affected the terms and conditions of his or her employment. An employee claiming unlawful discrimination had to prove that he or she was fired or was demoted or suffered some similar injury directly affecting his or her employment. The Supreme Court’s Burlington decision eliminates that requirement and, in so doing, significantly widens the field of conduct that can give rise to a retaliation claim.

The Burlington case arose from the actions of Burlington Northern & Santa Fe Railway Company against Sheila White, the only female employee in the Maintenance of Way Department at Burlington’s Tennessee Yard. Ms. White was hired as a “track laborer.” Her primary responsibility was operating a forklift. Shortly after she began working at Burlington, Ms. White complained to Burlington officials about insulting and inappropriate remarks made by her immediate supervisor. As a result, Ms. White’s supervisor received a 10-day suspension and was ordered to attend sexual harassment training. However, at the same time Ms. White was informed of her supervisor’s discipline, she also was told that she was being removed from her forklift assignment and reassigned to perform “standard track laborer tasks.” The reason given for her reassignment was co-workers’ complaints that it would be fairer for a “more senior man” to have the “less arduous and cleaner” forklift assignment.

Following her reassignment, Ms. White filed a sexual discrimination and retaliation claim with the Equal Employment Opportunity Commission. Two months after filing her EEOC claim, Ms. White filed a second retaliation charge claiming that her employer had placed her under surveillance and was monitoring her daily activities. A few days after filing the second claim, Ms. White was suspended, without pay, on the ground that her immediate supervisor claimed she had been insubordinate. At the conclusion of the internal grievance process, Burlington concluded that Ms. White had not been insubordinate and awarded her 37 days of back pay. Ms. White filed an additional retaliation charge with the EEOC in connection with her suspension.

Ms. White’s case eventually proceeded from the EEOC to federal court where a jury concluded that the change of job responsibilities and the 37-day unpaid suspension constituted unlawful retaliatory conduct in violation of Title VII. The decision was appealed to the Circuit Court of Appeals, and the judgment in Ms. White’s favor was upheld. The United States Supreme Court affirmed.

In holding against Burlington, the Supreme Court made clear that retaliation no longer is restricted to employer actions that directly affect the terms and conditions of employment such as firing, salary reduction, or removal of benefits. Rather, the relevant question now is whether a reasonable employee confronted with allegedly retaliatory action would have been discouraged from making or supporting a discrimination claim.

Under this new subjective standard, forbidden retaliatory conduct can occur inside or outside of the workplace and need not be related to the terms and conditions of employment. For example, such far flung actions as excluding the employee from a community event, undermining the employee’s authority, singling out the employee in front of his or her colleagues, ordering the employee’s colleagues to shun him or her, moving the employee’s office to an undesirable location, or changing the work schedule of an employee who relies on public transportation to make it difficult for him or her to commute could constitute retaliation.

Although it is imperative that employers take note of the new Burlington standard, there is no need to panic. Thoughtful action now will go a long way toward insulating employers and employees from the serious consequences of unlawful retaliation.

Six Ways to Better Navigate This New Terrain

1. Recognize how broadly retaliation is now defined. Remember that incidents that occur both at and away from the workplace can constitute retaliation. Keep in mind that retaliatory conduct need not have a direct relationship with the terms and conditions of employment.

2. Educate your supervisors. Educate your managers, supervisors, and human resource personnel about retaliation. Sensitize them to the issue so they understand that unlawful retaliation may occur outside the workplace, at community functions, or where ever management personnel interact with employees. Arm supervisors with the tools they need to recognize potential problems, train them to know when it is necessary to seek guidance from higher management.

3. Consult your attorney at the outset. Now, more than ever, it is imperative that employers consult legal counsel at the earliest stages of the claim process. Courts soon will be charting new territory as they are called upon to apply the new Burlington standard. When an employee complains of retaliation, immediately look to your attorney for guidance while the dimensions of this new standard are fleshed out.

4. Carefully review employee handbooks. Now is the time to carefully review the discrimination and retaliation provisions in your employee handbook. Any handbook that does not include information about the retaliation provisions of Title VII or that addresses retaliation using any standard other than the new Burlington standard should be rewritten. In most instances, it will be most cost effective to seek your attorney’s assistance in reviewing your current discrimination policies. The money you invest doing so could result in tremendous savings in the long run.

5. Educate employees about their rights. Whenever an employee reports what he or she believes to be a violation of Title VII, whether that employee is the victim of the conduct or simply a witness, explain that Title VII protects him or her from retaliation. Request that the employee immediately report to management any subsequent conduct that he or she believes to be retaliatory. Stress the importance of the employee’s role as your eyes and ears.

6. Act quickly. Speed is essential when responding to discrimination claims. As soon as a report of any type of discrimination, including retaliation, is made, personnel with experience investigating such claims should immediately commence an investigation with guidance from counsel. Interview all involved parties; gather all relevant documents; and keep detailed records. If the alleged misconduct is ongoing, address it in a manner that immediately stops it. If the alleged violator is the victim’s supervisor, change his or her supervisor immediately and for the duration of the investigation. Remember to report the steps that have been taken to all of the parties involved.


Under the broad new Burlington standard, every employer with fifteen or more employees faces an increased potential for having to address a retaliation claim. It is impossible to predict the future parameters of retaliation claims as courts begin to apply the new standard to actual cases. However, savvy employers who follow the seven steps outlined above will have taken important measures to protect their employees and will be far less likely to find themselves embroiled in expensive litigation.