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
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,
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.