Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

I pre­vi­ous­ly wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which 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.

National Basketball Association I want­ed to set out some addi­tion­al thoughts about Burling­ton North­ern, because it address­es an issue that has trou­bled the courts in inter­pret­ing the fed­er­al anti-dis­crim­i­na­tion laws: When is an employer’s con­duct seri­ous enough in dis­ad­van­tag­ing an employ­ee so that the employ­ee has a claim under the employ­ment dis­crim­i­na­tion laws? The answer is easy when the employer’s deci­sion affects the employee’s pock­et book, like with ter­mi­na­tion, fail­ure to hire, demo­tions, and the like. The answer has been much hard­er when the employer’s con­duct didn’t direct­ly affect the employee’s pock­et book.

NBA ref­er­ees strug­gle with a sim­i­lar issue: where is there enough phys­i­cal con­tact on the court to jus­ti­fy call­ing a foul on a play­er. So let’s explore some par­al­lels between these employ­ment dis­crim­i­na­tion issues and the NBA’s “no blood no foul” rule.

The NBA’s “No Blood No Foul” Rule

If you watch Nation­al Bas­ket­ball Asso­ci­a­tion games, you might be struck by how much phys­i­cal con­tact there is on the court and how rarely the ref­er­ees call per­son­al fouls over that phys­i­cal con­tact. Fans of the NBA have only a par­tial­ly kid­ding way to refer to the “stan­dard” by which the ref­er­ees decide how much con­tact will result in a per­son­al foul being called. It’s the “no blood no foul” rule. In oth­er words, the ref­er­ees will allow a lot of phys­i­cal con­tact, and will only call a foul when some­one gets blood­ied as a result of the con­tact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA ref­er­ees apply, regard­less of what is writ­ten in the Offi­cial Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hur­ley-burly con­tact on the bas­ket­ball court, much of which makes it more excit­ing for the fans, that call­ing a foul for any phys­i­cal con­tact (or a low­er defined lev­el of phys­i­cal con­tact) would slow down the game for fans and make the game less enjoy­able, unrea­son­ably impede the skill of the play­ers, and makes it impos­si­bly hard for offi­cials to iden­ti­fy “con­tact”. So the appear­ance of blood is a more “objec­tive” indi­ca­tion that the con­tact real­ly mat­tered and real­ly con­sti­tut­ed an unfair inter­fer­ence with the oth­er play­er.

The Supreme Court Strug­gles With “When is There a Foul”?

Courts for years have strug­gled with the employ­ment dis­crim­i­na­tion equiv­a­lent of the “no blood no foul” rule. For the courts, assum­ing unlaw­ful dis­crim­i­na­tion occurred: when is the con­se­quence of the dis­crim­i­na­tion seri­ous enough and objec­tive­ly dis­cernible so that courts will rec­og­nize a claim and inter­vene by acti­vat­ing the court’s process and poten­tial­ly award­ing dam­ages.

Except for sit­u­a­tions involv­ing hos­tile work envi­ron­ment, the courts have trans­lat­ed the NBA’s blood require­ment into a tan­gi­ble eco­nom­ic con­se­quence. Thus, much in the spir­it of the NBA, the courts have said eco­nom­ic harm must be demon­stra­ble as a result of dis­crim­i­na­tion, or else the courts won’t enter­tain the claim no eco­nom­ic con­se­quence, no legal vio­la­tion, case dis­missed.

Three Approach­es on Whether There is a Dis­crim­i­na­tion Foul

Before the supreme court’s deci­sion in Burling­ton North­ern, the courts had strug­gled over, in effect, how much blood to require, or even whether to require any blood at all.

We need to put aside, for the moment, claims involv­ing a hos­tile work envi­ron­ment. In such claims, there is no “blood” require­ment. The courts rec­og­nize claims for hos­tile work envi­ron­ment, and will award dam­ages, even where there is no eco­nom­ic con­se­quence, as long as the plain­tiff proves that the envi­ron­ment issue was severe or per­va­sive enough so as to inter­fere with what he an employee’s work envi­ron­ment. That sit­u­a­tion, where the courts do not require any eco­nom­ic con­se­quence, is the excep­tion rather than the rule.

So for retal­i­a­tion claims, the courts have his­tor­i­cal­ly adopt­ed three dif­fer­ent tests for deter­min­ing the min­i­mal lev­el of sever­i­ty required before the court will rec­og­nize a claim for the employ­ee. The fol­low­ing options start with the most severe lev­el of mis­con­duct the rough equiv­a­lent of blood ver­i­ta­bly gush­ing out of the NBA play­er:

First, some courts have only rec­og­nized a claim if there had been an “ulti­mate employ­ment deci­sion” in retal­i­a­tion for an employee’s oppo­si­tion to dis­crim­i­na­to­ry con­duct. “Ulti­mate employ­ment deci­sions” are things like hir­ing, grant­i­ng leave, dis­charg­ing, pro­mot­ing, and com­pen­sat­ing.

Sec­ond, mov­ing down in terms of the lev­el of sever­i­ty, some courts had rec­og­nized a claim where there had been an “adverse effect” on the “terms, con­di­tions, or ben­e­fits” of employ­ment. That is a broad­er test because it encom­pass­es con­duct by the employ­er that is on a low­er lev­el than the “ulti­mate employ­ment deci­sions.” For exam­ple, sup­pose an employ­er neg­a­tive­ly eval­u­ates an employ­ee so that the neg­a­tive eval­u­a­tion results in a low­er raise. Under the “ulti­mate employ­ment deci­sion” stan­dard, a per­for­mance eval­u­a­tion does not ring the bell. But under the stan­dard of an adverse affect on the “terms, con­di­tions, or ben­e­fits” of employ­ment, the neg­a­tive eval­u­a­tion would be includ­ed, poten­tial­ly pro­vid­ing the sup­port for the claim of retal­i­a­tion.

Third, some courts have aban­doned any blood require­ment at all. The Supreme Court rec­og­nized that there was a dif­fer­ent rule in terms of the require­ment for a spe­cif­ic lev­el of sever­i­ty between the sub­stan­tive dis­crim­i­na­tion pro­vi­sion of Title VII and the retal­i­a­tion pro­vi­sion. Eco­nom­ic con­se­quence was required under the sub­stan­tive dis­crim­i­na­tion pro­vi­sions, but not under the retal­i­a­tion pro­vi­sion. This dis­tinc­tion was tied close­ly to the dif­fer­ent lan­guage in the pro­hi­bi­tion sec­tions on dis­crim­i­na­tion and retal­i­a­tion.

Sub­stan­tive Pro­hi­bi­tions Ver­sus Retal­i­a­tion Pro­hi­bi­tions

Since this third approach is tied close­ly to a care­ful­ly read­ing of Title VII’s retal­i­a­tion pro­vi­sion, let’s look at the dif­fer­ence between the sub­stan­tive and retal­i­a­tion pro­vi­sions in Title VII (and a good but of the Supreme Court’s analy­sis in Burling­ton North­ern v. White was based on the dif­fer­ence between these pro­vi­sions).

Sec­tion 703(a) of Title VII con­tains the sub­stan­tive anti-dis­crim­i­na­tion pro­vi­sion: “it shall be an unlaw­ful employ­ment prac­tice for an employ­er (1) to fail or refuse to hire or to dis­charge any indi­vid­ual, or oth­er­wise to dis­crim­i­nate against any indi­vid­ual with respect to his com­pen­sa­tion, terms, con­di­tions, or priv­i­leges of employ­ment, because of such individual’s race, col­or, reli­gion, sex, or nation­al ori­gin; or (2) to lim­it, seg­re­gate, or clas­si­fy his employ­ees or appli­cants for employ­ment in any way which would deprive or tend to deprive any indi­vid­ual of employ­ment oppor­tu­ni­ties or oth­er­wise adverse­ly affect his sta­tus as an employ­ee, because of such individual’s race, col­or, reli­gion, sex, or nation­al ori­gin.” 42 U.S.C. § 2000e-2(a).

The anti-retal­i­a­tion pro­vi­sion of title VII, in sec­tion 704(a), has a dif­fer­ent pro­hi­bi­tion pro­vi­sion: “It shall be an unlaw­ful employ­ment prac­tice for an employ­er to dis­crim­i­nate against any of his employ­ees or appli­cants for employ­ment because he has opposed any prac­tice made an unlaw­ful employ­ment prac­tice by this sub­chap­ter, or because he has made a charge, tes­ti­fied, assist­ed, or par­tic­i­pat­ed in any man­ner in any inves­ti­ga­tion, pro­ceed­ing, or hear­ing under this sub­chap­ter.” 42 U.S.C. § 2000e-3(a).

The Supreme Court in Burling­ton North­ern v. White not­ed that the key words in the sub­stan­tive pro­vi­sion “hire,” “dis­charge,” “com­pen­sa­tion, terms, con­di­tions, or priv­i­leges of employ­ment,” employ­ment oppor­tu­ni­ties,” and “sta­tus as an employ­ee” “explic­it­ly lim­it the scope of that pro­vi­sion to actions that affect employ­ment or alter the con­di­tions of the work­place. No such lim­it­ing words appear in the anti-retal­i­a­tion pro­vi­sion.” This is at pages 2411–2412.

The sub­stan­tive pro­vi­sion seeks to pre­vent injury to indi­vid­u­als based on who they are, i.e., their sta­tus. The anti-retal­i­a­tion pro­vi­sions seek to pre­vent harm to indi­vid­u­als based on what they do, i.e., their con­duct.”

The Supreme Court rec­og­nized that the lan­guage in the retal­i­a­tion pro­vi­sion was not lim­it­ed to con­duct in the work­place. “An employ­er can effec­tive­ly retal­i­ate against an employ­ee by tak­ing actions not direct­ly relat­ed to his employ­ment or by caus­ing him harm out­side the work­place.” Exam­ples that the court not­ed, from ear­li­er deci­sions, were: an employ­ee of the FBI com­plained, and the FBI retal­i­at­ed by refus­ing to inves­ti­gate death threats a fed­er­al pris­on­er had made against the employ­ee. Anoth­er exam­ple: the employ­er filed false crim­i­nal charges against a for­mer employ­ee who com­plained about dis­crim­i­na­tion.

A pro­vi­sion lim­it­ed to employ­ment-relat­ed actions would not deter the many forms of 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.”

Thus, “the pur­pose rein­forces what lan­guage already indi­cates”, that the “anti-retal­i­a­tion pro­vi­sion, unlike the sub­stan­tive pro­vi­sion, is not lim­it­ed to dis­crim­i­na­to­ry actions that affect the terms and con­di­tions of employ­ment.”

Key Rul­ing: “Mate­ri­al­ly Adverse” Action

The Supreme Court posed the issue as address­ing “the lev­el of seri­ous­ness to which this harm must rise before it becomes action­able retal­i­a­tion.” The Supreme Court agreed with the Sev­enth and Dis­trict of Colum­bia Cir­cuits. The Supreme Court con­clud­ed that “a plain­tiff must show that a rea­son­able employ­ee would have found the chal­lenged action mate­ri­al­ly adverse, which in this con­text means it well might have dis­suad­ed a rea­son­able work­er from mak­ing or sup­port­ing a charge of dis­crim­i­na­tion””.

The Supreme Court said that it described the rule in terms of “mate­r­i­al adver­si­ty” to sep­a­rate “sig­nif­i­cant from triv­ial harms.” There is no “gen­er­al civil­i­ty code for the Amer­i­can work­place.” The “ordi­nary tribu­la­tions of the work­place, such as the spo­radic use of abu­sive lan­guage, gen­der-relat­ed jokes, and occa­sion­al teas­ing” must be fil­tered out of the uni­verse of claims that the courts will rec­og­nize. The law will not “immu­nize” the employ­ee from those “pet­ty slights or minor annoy­ances that often take place at work and that all employ­ees expe­ri­ence.” “Per­son­al­i­ty con­flicts at work that gen­er­ate antipa­thy and snub­bing by super­vi­sors and cowork­ers are not action­able” under Title VII. So “nor­mal­ly pet­ty slights, minor annoy­ances, and sim­ple lack of good man­ners will not cre­ate such deter­rence.”

The rule was stat­ed in terms of a “rea­son­able employ­ee” because the “stan­dard for judg­ing harm” must be “objec­tive.” An objec­tive stan­dard is “judi­cial­ly admin­is­tra­ble.” That stan­dard avoids the “uncer­tain­ties and unfair dis­crep­an­cies” that can “plague a judi­cial effort to deter­mine a plaintiff’s unusu­al sub­jec­tive feel­ings.”

Mate­ri­al­ly Adverse” Action ver­sus “Pet­ty Slights”

The court gave fur­ther exam­ples of how to dis­tin­guish between “pet­ty slights” and “mate­r­i­al” changes that might deter a rea­son­able employ­ee from com­plain­ing about dis­crim­i­na­tion. For exam­ple, while a “sched­ule change in an employee’s work sched­ule may make lit­tle dif­fer­ence to many work­ers, it may mat­ter enor­mous­ly to a young moth­er with school age chil­dren.” The court cit­ed one exam­ple of an employ­ee with a dis­abled child need­ing flex-time sched­ul­ing.

The supervisor’s refusal to invite an employ­ee to lunch is nor­mal­ly triv­ial. But to retal­i­ate by “exclud­ing an employ­ee from the week­ly train­ing lunch that con­tributes sig­nif­i­cant­ly to the employee’s pro­fes­sion­al advance­ment might well deter a rea­son­able employ­ee from com­plain­ing about dis­crim­i­na­tion.” The court not­ed that whether action is sig­nif­i­cant­ly adverse “will often depend upon the par­tic­u­lar cir­cum­stances. Con­text mat­ters.” An act that would be “imma­te­r­i­al in some sit­u­a­tions is mate­r­i­al in oth­ers.”

The stan­dard is tied to the “chal­lenged retal­ia­to­ry act, not the under­ly­ing con­duct that forms the basis of the Title VII com­plaint.”

The key in exam­in­ing the employer’s chal­lenged retal­ia­to­ry action is to “screen out triv­ial con­duct while effec­tive­ly cap­tur­ing those acts that are like­ly to dis­suade employ­ees from com­plain­ing or assist­ing in com­plaints about dis­crim­i­na­tion.”

In the case, the employ­ee had been assigned from fork­lift duty, which was con­sid­ered desir­able, to stan­dard track labor tasks.

Com­mon sense sug­gests that one good way to dis­cour­age an employ­ee such as White from bring­ing dis­crim­i­na­tion charges would be to insist that she spent more time per­form­ing the more ardu­ous duties and less time per­form­ing those that are eas­i­er or more agree­able.” Thus, one of the cat­e­gories of adverse retal­ia­to­ry action that did not require finan­cial con­se­quence was “unpleas­ant work assign­ments.”

How­ev­er, reas­sign­ment of job duties is not “auto­mat­i­cal­ly action­able.” Whether a par­tic­u­lar reas­sign­ment is “mate­ri­al­ly adverse” “depends upon the cir­cum­stances of the par­tic­u­lar case” and should be judged from the “per­spec­tive of a rea­son­able employ­ee in the plaintiff’s posi­tion, con­sid­er­ing all the cir­cum­stances.”

The court also found that the fact that the employ­er sus­pend­ed White for 37 days with no pay was a mate­ri­al­ly adverse action, even though the lost income was lat­er paid to the employ­ee. An “indef­i­nite sus­pen­sion with­out pay could well act as a deter­rent, even if the sus­pend­ed employ­ee even­tu­al­ly received back pay.”

Jus­tice Alito’s Con­cur­ring Opin­ion

Jus­tice Ali­to wrote a con­cur­ring opin­ion in which he con­curred in the judg­ment. He would have applied the con­ven­tion­al require­ment that the adverse employ­ment action must con­sti­tute a “tan­gi­ble employ­ment action”, and he thought the reas­sign­ment to the sub­stan­tial­ly less desir­able posi­tion and duties con­sti­tut­ed such an “adverse employ­ment action.”

He was con­cerned about part II-D of the Court’s opin­ion, in which the court con­clud­ed that the only thresh­old require­ment was mate­ri­al­ly adverse action that would dis­suade a rea­son­able employ­ee from com­plain­ing about dis­crim­i­na­tion. He thought that test was unnec­es­sary, and that the court should have employed the test requir­ing some tan­gi­ble effect on the com­pen­sa­tion, terms, con­di­tions, or priv­i­leges of employ­ment.

Jus­tice Ali­to describes a num­ber of poli­cies (“pur­pos­es”) behind the anti-retal­i­a­tion pro­vi­sion in Title VII: (1) pre­vent­ing employ­ers from engag­ing in retal­ia­to­ry mea­sures which will dis­suade employ­ees from engag­ing in pro­tect­ed activ­i­ty, and (2) pre­vent harm to indi­vid­u­als that assert their rights.

The Take-Away Rules in Burling­ton North­ern v. White

The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to an 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.

Final­ly, Back to the NBA

After all of this legal stuff, grab a beer and watch the NBA “Top Sto­ry” on ESPN (the video from this wid­get may not work on some mobile phone browsers):

Final­ly, but only if you are hard­core NBA fan, read the NBA’s Rule 12, Part B on “Per­son­al Foul”, under Sec­tion I “Types”. This will give you the NBA’s real rule on per­son­al fouls:

a. A play­er shall not hold, push, charge into, impede the progress of an oppo­nent by extend­ing a hand, fore­arm, leg or knee or by bend­ing the body into a posi­tion that is not nor­mal. Con­tact that results in the re-rout­ing of an oppo­nent is a foul which must be called imme­di­ate­ly.
b. Con­tact ini­ti­at­ed by the defen­sive play­er guard­ing a play­er with the ball is not legal. This con­tact includes, but is not lim­it­ed to, fore­arm, hands, or body check.
(1) A defend­er may apply con­tact with a fore­arm to an offen­sive play­er with the ball who has his back to the bas­ket below the free throw line extend-ed out­side the Low­er Defen­sive Box.
(2) A defend­er may apply con­tact with a fore­arm and/or one hand with a bent elbow to an offen­sive play­er in a post-up posi­tion with the ball in the Low­er Defen­sive Box.
(3) A defend­er may apply con­tact with a fore­arm to an offen­sive play­er with the ball at any time in the Low­er Defen­sive Box. The fore­arm in the above excep­tions is sole­ly for the pur­pose of main­tain­ing a defen­sive posi­tion.
(4) A defend­er may posi­tion his leg between the legs of an offen­sive play­er in a post-up posi­tion in the Low­er Defen­sive Box for the pur­pose of main­tain­ing defen­sive posi­tion. If his foot leaves the floor in an attempt to dis-lodge his oppo­nent, it is a foul imme­di­ate­ly.
(5) Inci­den­tal con­tact with the hand against an offen­sive play­er shall be ignored if it does not affect the player’s speed, quick­ness, bal­ance and/or rhythm.
c. Any play­er whose actions against an oppo­nent cause ille­gal con­tact with yet anoth­er oppo­nent has com­mit­ted the per­son­al foul.
d. A per­son­al foul com­mit­ted by the offen­sive team dur­ing a throw-in shall be an offen­sive foul, regard­less of whether the ball has been released.
e. Con­tact which occurs on the hand of the offen­sive play­er, while that hand is in con­tact with the ball, is legal.
EXCEPTION: Fla­grant, elbow and punch­ing fouls.

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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
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