U.S. SUPREME COURT EXPANDS TITLE VII’S ANTI-RETALIATION PROVISION

Burlington N. & S. F. R. Co. v. White, 2006 WL 1698953 (U.S. June 22, 2006)




Facts of Burlington N. & S. F. R. Co. v. White




Marvin Brown (“Brown”), a manager for Burlington Northern & Santa Fe Railway Company (“Burlington”), hired Sheila White (“White”) in June 1997 to work as a “track laborer.” White was the only woman working in the Maintenance of Way department. White’s primary responsibility was operating a forklift; however, she also performed some of the track laborer tasks.



In September of 1997, White reported to Burlington officials that Bill Joiner (“Joiner”), her immediate supervisor, had repeatedly told her that women should not be working in the Maintenance of Way department and also made insulting and inappropriate remarks to her in front of other colleagues. After Burlington conducted an internal investigation, Joiner was suspended for 10 days and required to attend a sexual-harassment training. Brown then reassigned White to standard track laborer tasks and completely removed her from forklift duty.

White filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) claiming her reassignment amounted to gender-discrimination and retaliation for her complaint against Joiner. In December, White filed another complaint with the EEOC claiming that Brown had placed her under surveillance, constantly monitoring her daily activities.

A few days after filing the December complaint, White and her supervisor, Percy Sharkey (“Sharkey”) had a disagreement. Sharkey claimed to Brown that White had been insubordinate. Brown suspended White without pay causing White to prompt internal grievance procedures, which eventually led Burlington to conclude White had not been insubordinate. White was reinstated, with 37 days backpay for the time she was suspended. She then filed another EEOC charge for retaliation, based on the suspension.

A jury found in White’s favor awarding her $43,500 in damages for her claims of unlawful retaliation. Burlington appealed arguing White did not suffer any harm from these acts of retaliation since she received backpay. The Sixth Circuit heard the matter en banc and affirmed the District Court’s judgment for White. The U.S. Supreme Court granted certiorari to resolve a deviation in the Circuit Courts as to whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment in the workplace.

The Ruling
The Supreme Court held that the anti-retaliation provision of Title VII extends beyond workplace related or employment related retaliatory acts and harm. This conclusion was based on several factors. First the court found the language in the anti-retaliation provision of Title VII does not include limiting words such as “hire,” “discharge,” “compensation, terms, conditions, or privileges” as the other provisions in the Act include.

Second the Court found that an employer can retaliate against an employee with actions not directly related to employment and can cause harm outside the workplace: such as in Rochon v. Gonzales, 438 F.3d, at 1213, where the FBI refused to investigate death threats from a federal prisoner made against the agent and his family. Last, the Court agreed with the EEOC manuals stating that a broad interpretation of the anti-retaliation provision is intended to provide exceptionally broad protection to employees who protest discriminatory employment practices.

The Court limited the scope of the Title VII provision, saying it does not protect an individual from all retaliation, but only retaliation that produces injury or harm. They also adopted a rule saying a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.

Ultimately the court affirmed, finding in favor of White and saying that suspension without pay could act as a deterrent to filing a complaint, which is against the primary objective of the Title VII

Analysis
Title VII has always prohibited employers from retaliating against an employee for making a legitimate claim of discrimination. The Burlington decision makes it crystal clear that the protections are even more broad than many employers believed including that employers should not suspend reporters of wrongdoing without pay, even when their claim is being investigated, and that employers should make certain that the pay and job functions of such employees remain the same or nearly the same.

The Burlington decision may place some employers between a “rock and a hard place.” In Burlington the Court had the privilege of Burlington’s internal investigation where it was determined that the harassment did occur, and the actions of the Burlington supervisors gave every appearance of being retaliatory. Unfortunately, not all complaints of retaliation are so “cut and dried.”

A concern is what to do when an investigation is non-conclusive, finding no evidence to prove or disprove the accusation. In the past, a “best practice” was to separate the accuser and the accused to avoid a claim of retaliation.

After Burlington, many employers must now choose to keep accuser and accused together, increasing the likelihood of more issues arising, especially if the accused manages the accuser, or transfer one of the parties to a different, but like position. Simply transferring an employee to a different position no longer appears to be an option.

Checklist

To prevent a Burlington dilemma, employers should keep in mind the following suggestions:

Develop policies and procedures protecting employees who file discrimination complaints from materially adverse actions both inside and outside of the workplace.

Train all supervisors on what can amount to adverse actions against an employee.

Follow all the policies and procedures thoroughly and investigate claims of discrimination fairly without taking any adverse action against the employee making the complaint.

Continue to pay the accuser and the accused during an investigation of a claim.
Make certain that human resources and your legal counsel approve any transfer of an employee who has made a claim of wrongdoing.

If transferring one of the parties becomes necessary, make certain that the transferred employee receives the same pay and benefits and has similar job duties and expectations as required in his or her previous position.

Continually check with all parties of an accusation to make certain that retaliation is not occurring after the matter is resolved.