Retaliation: Plaintiffs' Lawyers Benefited

Retaliation by employers against workers suffered a blow from the U.S. Supreme Court in a major decision handed down in June 2006. The Court's decision now unifies heretofore divergent circuit court rulings on what retaliation lay within the scope of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.

In Burlington Northern & Santa Fe Railway Co. v. White (05-259), the Court held that the retaliation provision of Title VII of the Civil Rights Act "does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." The Court also held that "the anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant."

The Court's view was that the anti-discrimination provision of Title VII seeks a workplace where individuals are not discriminated against because of their status, while the anti-retaliation provision seeks to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.

The Court has eased the standard by which courts will assess whether adverse actions taken by an employer constitute impermissible retaliation.

The Court determined that "materially adverse" 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."

Making clear that "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace," the Court included such retaliation among those forms prohibited by Title VII.

An anti-retaliation provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's "primary purpose," namely, "[m]aintaining unfettered access to statutory remedial mechanisms."

The Court's ruling states: "[W]e conclude that Title VII's substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called 'ultimate employment decisions,'" (decisions such as firing, suspension, demotion).

The Court's ruling has handed plaintiffs' discrimination and retaliation attorneys a new, stronger tool.