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by Jennifer Brown Shaw | The Daily Recorder | Jul 7, 2006

In Burlington
Northern and Santa Fe Railway Company v. White
, the United States expanded

the anti-retaliation provisions of Title VII of the Civil Rights Act of

1964. While retaliation claims brought under the less restrictive standards

of California’s Fair Employment and Housing Act (“FEHA”)

will not immediately be affected by the new Title VII rules, a question

now lingers as to whether state law will be revisited. It certainly would

not be the first time California has followed the lead of the U.S. Supreme

Court when it comes to employment rights issues.

Even Retaliation Unrelated to Employment May be Actionable

The gist of the U.S. Supreme Court’s ruling in Burlington

is that the “adverse employment action” needed to establish

a retaliation claim under Title VII does not have to be related

to employment, or even occur at the workplace. The Court held that the anti-retaliation

provisions in the statute covers those (and only those) employer actions

that would have been materially adverse to a reasonable employee

or job applicant. The Court explained that “the employer’s actions

must be harmful to the point that they could well dissuade a reasonable

worker from making or supporting a charge of discrimination” in the

first instance. The Court reached this conclusion after considering a variety

of conflicting standards that previously had existed among the district


The Facts the Court Considered

The plaintiff in Burlington was Sheila White, a railroad employee.

White complained to Burlington that her immediate supervisor, Bill Joiner,

repeatedly commented to her that women should not be working in her assigned

department. White also complained that Joiner had made insulting and inappropriate

remarks to her in front of male co-workers. An investigation ensued, and

Joiner was suspended for 10 days and ordered to attend sexual harassment

prevention training.

Marvin Brown, another Burlington manager, told White about Joiner’s

discipline. During the very same discussion, Brown told White she was

being removed from her preferred forklift assignment and would be performing

less desirable duties that were within her track laborer job description.

Brown’s explanation to White was that the reassignment reflected

co-worker complaints that, in fairness, a “more senior man”

should have the “less arduous and cleaner job” of forklift


Shortly thereafter, White filed a complaint of discrimination and retaliation

with the Equal Employment Opportunity Commission (“EEOC”),

alleging the reassignment of her duties amounted to unlawful gender discrimination

and retaliation. Approximately two months later, White filed a second

complaint of retaliation with the EEOC. This time she claimed Brown had

placed her under surveillance and was monitoring her daily activities.

A copy of the complaint was mailed to Brown.

A few days after Brown received a copy of the EEOC complaint, White had

a disagreement with a third supervisor, Percy Sharkey. Sharkey told Brown

that White had been insubordinate, and Brown immediately suspended her without

pay. In a subsequent grievance procedure, it was determined that White had

not been insubordinate. Burlington reinstated White to her position,

and awarded her full back pay for the 37-day suspension. White then filed

a third complaint of retaliation with the EEOC, based on her suspension.

White later filed suit in federal court under Title VII. She alleged that

changing her job responsibilities and suspending her without pay was unlawful

retaliation. A jury found in White’s favor and awarded damages.

Sitting en banc, the Sixth Circuit upheld the trial court’s

decision on both of White’s claims. However, the members of the court

disagreed as to which standard should apply when considering whether an

adverse employment action, sufficient to constitute unlawful retaliation,

has occurred.

Burlington appealed the Sixth Circuit’s decision. The Supreme Court

was asked to resolve a dispute among the courts of appeals regarding the

standards applicable in Title VII retaliation cases. In the view of some

courts, actionable retaliation should involve only “ultimate”

employment action, such as firing, demotion, etc. Others courts had ruled

that nearly any negative experience motivated by retaliation for engaging

in protected activity would be actionable.

The Supreme Court took a middle ground, but one that undoubtedly will

result in an increase in the number of retaliation claims filed. Here

is a summary of the decision’s main points:

  • The “adverse employment action” needed to establish a

    retaliation claim under Title VII does not have to be related to employment,

    or even occur at the workplace.

  • Employers may be liable for non-work related retaliation if it is

    shown that the employer committed some action or omission away from

    the workplace related to the employee’s exercise of protected


  • To be actionable, an “adverse employment action” must

    be materially adverse to a reasonable employee or job applicant.

    Such conduct must be sufficiently harmful to dissuade a reasonable worker

    from making or supporting a charge of discrimination.

  • Whether an employee experienced a “material adverse action”

    must be measured “objectively” from the standpoint of a

    “reasonable” employee subjected to retaliation.

  • The types of conduct amounting to retaliation must be measured in

    context, and the particular circumstances of a case considered. Petty

    slights, minor annoyances and “bad manners” normally will

    be insufficient to sustain a retaliation claim. However, even trivial

    behavior may suffice in certain circumstances. For example, trivial

    slights such as declining to invite an employee to lunch (ostracism)

    can become retaliatory when there is harm to the employee’s career.

    This might occur where there is a retaliatory refusal to include an

    employee in weekly staff lunches where employee training is provided.

  • Not every kind of retaliatory conduct is actionable; only those that

    cause actual harm can support such a claim.

California’s Standard for Retaliation

The Burlington case applies only to federal claims, not to those

brought under California’s FEHA. However, the California Supreme Court

considered the same issues in the context of the FEHA when it decided Yanowitz

v. L’Oreal USA, Inc. in 2005.

In Yanowitz, the court adopted a “materiality test”

for determining whether certain conduct will constitute retaliation. Under

this rule, retaliation is not actionable unless an employer’s conduct

materially affects the terms and conditions of employment. In analyzing

whether an employee has been subjected to treatment that “materially”

affects the terms and conditions of employment, it is appropriate to consider

the totality of the circumstances, including any “continuing violations.”

This definition of adverse action arguably is narrower than the federal

standard adopted in Burlington. For example, the adverse action

in Yanowitz must be work-related; under federal law, it does not.

Given the stark differences between the analyses in Burlington

and Yanowitz, it will be interesting to see if the California Supreme

Court will take up the issue anew.

Words of Caution

While most claims of retaliation filed in California courts are brought

under the FEHA, employees are free to plead Title VII violations as well.

Such claims certainly are not unheard of, and employers are well-advised

to take heed of the strict standards set by the Court in Burlington.

Employers should ensure that supervisors and managers have a clear understanding

that retaliation of any kind – including conduct outside work that

is related to a protected activity – is unlawful and will result in

immediate disciplinary action, up to and including termination. Supervisors

and managers also should read and acknowledge receipt of company policies

that explicitly include procedures for reporting retaliation and discrimination.

Further, supervisors and managers should fully understand their personal

employment obligation to report and respond to any complaints of retaliation

(or other EEO issues).

Employers also should keep in mind that one of the best methods of preventing

claims is to provide qualified, professional training on retaliation and

other EEO issues to employees on at least an annual basis.