This morning, the U.S. Supreme Court issued its highly anticipated decision in Burlington Northern & Santa Fe Railway Company v. White (No. 05-259).  The case was brought by a female railroad worker who claimed that she was suspended without pay and reassigned to another position in retaliation for complaining about unlawful harassment.  The key question before the high court was what constitutes an “adverse employment action” under the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. 

In upholding the jury’s verdict in favor of the employee, the Court first held that the anti-retaliation provision “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.”  In reaching this conclusion, the Justices referred to the D.C. Circuit opinion involving an FBI agent who claimed that he was not warned when the FBI learned about threats to his life from an inmate.  According to the Court, “[a] provision limited to employment-related actions would not deter the many forms that effective retaliation can take.”  Thus, the Court rejected the standard applied by the Courts of Appeals that limited actionable retaliation to so-called “ultimate employment decisions.”

The high court then turned to what it deemed to be the proper standard for evaluating retaliation claims under Title VII.  Agreeing with the Seventh and District of Columbia Circuits, the Justices wrote: “In our view, 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 Court made three important explanatory points:

  • It is important to distinguish “significant from trivial” harms;
  • It used the phrase “reasonable employee” to make clear that the standard is an objective, rather than subjective one; and
  • It defined the standard in general terms because the decision as to whether it is an adverse action must be decided in context.

Applying its new standard, the Court unanimously held that both a 37-day unpaid suspension, even though it was later converted to paid, and an assignment to a more physically arduous position were adverse actions and thus form the basis for a retaliation action.  As a result, the judgment of the Court of Appeals was affirmed.

According to Michael Fox, a shareholder in Ogletree Deakins’ Austin office: “This decision is not a terribly unexpected result.  This will undoubtedly be referred to as a pro-employee decision – which it is – but employers can take heart in the explanatory comments, particularly that the test is objective.  Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the court.  What it certainly means, however, is there will exist a period of time until the courts, at least in 10 circuits, sort through their new standard.”
This ruling, and the practical impact for employers, will be discussed in more detail in the next issue of The Employment Law Authority, Ogletree Deakins’ bimonthly newsletter.  For a copy of the decision, click here.  Should you have any questions about this ruling or other employment law related issues, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at

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