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.
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.
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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.