On June 22, 2006, the US Supreme Court decided the case of Burlington Northern and Santa Fe Railway Company v. White, 126 S. Ct. 2405, which appears to ease the burden on an employee plaintiff bringing a retaliation claim against an employer.

FACTS: Sheila White, a female track laborer for Burlington Northern and Santa Fe Railway Company (Employer) was assigned to be a forklift operator. Ms. White alleged that her supervisor was guilty of harassment. In response to White’s complaint, the supervisor was disciplined and White was reassigned from her forklift operator position to other duties that were considered more difficult. White filed a charge with the EEOC claiming that the reassignment was retaliatory. White also suffered a suspension when another supervisor accused her of insubordination. The insubordination claim did not bear out and White was reinstated with back pay for the duration of the suspension period. White filed an additional charge with the EEOC, claiming that the suspension was also retaliatory.

DECISION: The Supreme Court found that an employee must only show that a reasonable employee would find the action taken by the employer to be “materially adverse” when attempting to prove a retaliation claim. “Materially adverse” means only that the employer’s action might have dissuaded the employee from making or supporting a discrimination claim. The Court advised that the focus should be on the “materiality of the challenged action” viewed from the perspective of a “reasonable person in the plaintiff’s position.” The Court found that even though White did not suffer a reduction in pay or benefits, the employer had retaliated against her by giving her harder duties. Therefore, her reassignment could dissuade employees from complaining about discrimination. Also, with respect to White’s suspension, the fact that she was ultimately given back pay did not excuse the employer. The Court reasoned that a suspension without pay would be a hardship to an employee and could reasonably dissuade employees from complaining about discrimination, even though they might receive back pay if they were to convince the employer of the substance of their complaint.

This decision is far reaching in that the Supreme Court found that a retaliation claim may relate to actions taken by an employer or employer representative outside the workplace, such as putting an employee on surveillance. It is therefore critical that all supervisors be trained to understand that all forms of retaliation are prohibited. Virtually any conduct that may dissuade a reasonable employee from complaining about discrimination may be seen as retaliatory.

To further discuss this case, its applicability to your workplace, or for any other employment related issues, contact Deborah P. Ecker.