US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) deci­sion.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to employer’s action at the work­place, and it is not lim­it­ed to action tak­en while the plain­tiff is still work­ing for the employ­er.

Sec­ond: Action by the employ­er may vio­late the anti-retal­i­a­tion pro­vi­sion even if it does not cause a tan­gi­ble loss, such as pay, for the plain­tiff. The con­duct may vio­late the law if it is “mate­ri­al­ly adverse” (as opposed to “triv­ial”) to the employ­ee, and might dis­suade a “rea­son­able work­er” from “mak­ing or sup­port­ing a charge of dis­crim­i­na­tion”. So, for exam­ple, trans­fers to dif­fer­ent posi­tions, even though they involve no loss in pay or ben­e­fits or pro­mo­tion­al oppor­tu­ni­ties, might con­sti­tute unlaw­ful action because, if the trans­fer is to what a rea­son­able work­er would view as a less attrac­tive job, that might dis­suade a rea­son­able work­er from com­plain­ing of dis­crim­i­na­tion.

Follow me:

Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
Fol­low me:

One thought on “US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006”

  1. Unfor­tu­nate­ly, the com­pa­ny had very bad tim­ing. It chose that same moment to take the employ­ee off the fork­lift and assign her to the reg­u­lar duties of the track labor­er job.For exam­ple, trans­fers in dif­fer­ent posi­tions, even though they do not include loss of wages or ben­e­fits or pro­mo­tion­al oppor­tu­ni­ties, may con­sti­tute an ille­gal act, because, if the trans­fer is that a rea­son­able employ­ee would see as a less attrac­tive job , which can destroy the mind a rea­son­able employ­ee from com­plain­ing of dis­crim­i­na­tion.

Leave a Reply