The Supreme Court clarifies Title VII’s Anti-Retaliation Provision
July, 2006
Title VII of the Civil Rights Act of 1964 forbids employment discrimination against "any individual" based on that individual's "race, color, religion, sex or national origin." Title VII also contains an anti-retaliation provision. It forbids an employer from discriminating against an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceeding or investigation.
In Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. ___ (June 22, 2006), the United States Supreme Court resolved a split among the circuit courts about how to apply Title VII's anti-retaliation provision. The court unanimously held that the anti-retaliation provision extends beyond (and is not confined to) workplace-related or employment-related retaliatory acts and harm. The court recognized that an employer can effectively retaliate against an employee by taking actions not directly related to his or her employment or by causing harm outside the workplace. For example, an employer could retaliate against an employee for complaining about unlawful discrimination by filing false criminal charges against him.
The court further clarified, however, that not all retaliatory actions are sufficient to support a Title VII retaliation claim. Petty slights, minor annoyances and simple lack of good manners are not protected. The court imposed an objective, judicially administrable standard by holding that Title VII's anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee, "which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'"
The significance of any given act of retaliation will depend on the particular circumstances. As expressly stated by the court: Context matters.
Claims for Title VII retaliation are numerous. One potentially difficult situation (and often a basis for litigation) is where an employee has engaged in protected activity then presents legitimate performance or conduct issues. Human Resources personnel should educate company managers to contact HR for guidance in that situation.
Burlington Northern v. White provides clarification and should result in uniformity among the circuit courts regarding application of Title VII's anti-retaliation provision. Time will tell its effect on plaintiffs' claims. In the interim, if you have specific concerns, please contact your employment law attorney.