Supreme Court Rules for Employee on Retaliation Claim

On Thursday, June 22, 2006, the United States Supreme Court decided the case of Burlington Northern and Santa Fe Railway Co. v. White, expanding the scope of retaliation claims. This is a case involving alleged retaliation against a railroad worker. The worker claimed that she was treated adversely when her job duties were altered and she was suspended without pay after filing claims of harassment and retaliation.

Facts of the Case

The employee who filed the lawsuit drove a forklift for the railroad company. She complained that she was sexually harassed by the foreman who supervised her. Her complaint was investigated by the company and the foreman was suspended for ten days and required to undergo training. At the same time she was informed of the foreman’s discipline, the employee was transferred to a position repairing railroad tracks, a less desirable job than the forklift operator position she formerly held. Her job classification remained the same. After her transfer, the employee filed with the Equal Employment Opportunity Commission (EEOC) two complaints of retaliation related to her transfer and alleged subjection to surveillance and monitoring. Shortly afterwards, she was suspended without pay for 37 days. Her suspension ended when she was reinstated with back pay as the result of a union grievance she filed. She also filed an additional EEOC charge related to the suspension.

Prior History

A federal jury in Tennessee awarded the employee $43,500 in compensatory damages based on her retaliation claim. The award was initially reversed on appeal but then later reinstated by a panel of the United States Court of Appeals for the Sixth Circuit. The railroad company appealed to the United States Supreme Court.

Supreme Court Decision

The Supreme Court addressed two issues in this case: 

1. whether there must be a link between the challenged retaliatory action and the terms, conditions, or privileges of employment, and
2. whether the actions taken against the employee in this case could be considered “retaliation” as that term is defined in the law.

The railroad argued that the behavior at issue did not “materially” change the employee’s terms and conditions of employment and should not be considered retaliation. The employee argued that a lower standard should be adopted under which any negative action is enough to bring a claim.
Justice Breyer stated the ruling of the Court upholding the jury verdict for the employee:

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 applicant.
Burlington Northern and Santa Fe Railway Co. v. White, No 05-259, 548 U.S. ____, p. 2 (S.Ct. June 22, 2006).

First, the Court concluded that the retaliation provisions provide broader protections for victims of retaliation than they do against victims of harassment or discrimination, who must demonstrate impact on the terms, conditions, or privileges of employment. The Court gave some examples of the types of situations that could give rise to liability for retaliation under this standard: 

• an FBI case where the agency refused to investigate death threats made to an agent and his wife in retaliation for his complaint
• an employer who filed false criminal charges against a former employee who complained about discrimination

Second, the Court found that retaliation occurs regardless of its impact on employment if the conduct was “materially adverse,” meaning it “might have ‘dissuaded a reasonable worker from making or supporting charges of discrimination’” (page 13). The Court distinguished “materially adverse” conduct from conduct that is trivial, such as “normal petty slights, minor annoyances, and simple lack of good manners” (page 13-14). The Court indicated that, in determining whether retaliation has occurred, each case should be addressed separately based on its individual facts.

This decision means conduct that impacts an employee either inside or outside of work can be sufficient to support a retaliation claim so long as it would discourage employees from speaking up.

What are the implications for employers?

The EEOC reports that approximately 30% of charges filed allege retaliation in the workplace. In addition, in the ten years from 1995 to 2005, the number of retaliation charges filed increased from 17,070 to 22,278. The outcome of this case likely means that filing of retaliation cases will continue to rise.

Employers must educate their managers to help avoid retaliation in the workplace. Any adverse action taken against an employee, whether or not it impacts the terms and conditions of employment, may now be viewed as retaliation.

Managers are the first line of defense organizations have in preventing, detecting, and correcting inappropriate workplace conduct. As a result, they need to be given practical communication skills for creating an environment where employee concerns are welcomed, listened to, and taken seriously. They also need to understand the potential consequences of any adverse or negative action taken against an employee who has filed a complaint.

Beyond ensuring managers know when and how to Get Help (Prescriptive Rule® #3), this case underscores the importance of developing managers’ listening and problem-solving skills and holding them accountable to these competencies as key performance metrics. By avoiding retaliation and handling employee concerns appropriately, they will help create a culture that encourages individuals to come forward when issues arise.

About ELI®

Founded in 1986, ELI is a training company that teaches professional workplace conduct, helping clients translate their values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce legal and ethical risk.

Over the past 20 years, we have worked with organizations across a variety of industrial sectors to help them develop managerial skills that foster open communications, teamwork, and effective decision-making. Recognizing that managers need to know what to do in addition to knowing what the law requires, we design our award-winning online and instructor-led training solutions with practical application and outcomes in mind. Participants learn skill steps and guidelines that will help them operationalize key concepts back on the job and align their behavior with the organization’s values.

ELI^® specializes in the following training: harassment and sexual harassment training; race, age, gender, disability, pregnancy, religious, sexual orientation, genetic, and other forms of discrimination training; retaliation and protected protest; unjust dismissal; fair hiring; Civil Treatment training; compliance training; wage and hour compliance training; business ethics training; Sarbanes-Oxley training; Employee Free Choice Act and union avoidance training; values-based leadership training; leadership development; and abusive and bullying behavior.