Burlington Northern & Santa Fe Railroad Co. v. White

Section 2000e-3(a) forbids an employer from “discriminating against” an employee because she opposed an “unlawful employment practice.” In this case, the Supreme Court must determine what constitutes retaliatory discrimination so that it is actionable under § 2000e-3(a). The circuit courts have identified three conflicting standards: (i) any “materially adverse change in the terms of employment,” including an inconvenient reassignment or even a temporary suspension rescinded by the employer with full back pay, White v. Burlington Northern & Santa Fe Railroad Co.,364 F.3d 789 (6th Cir. 2004); (ii) any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity, as the Ninth Circuit holds, see Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000); or (iii) only an “ultimate employment decision,” as two other courts of appeals hold, see Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).

The standard ultimately adopted by the Court will profoundly impact employer exposure to Title VII claims, the volume of discrimination litigation in federal courts, and the liability of employers who exploit more creative, subtler forms of retaliation against discrimination opponents. A brief synopsis of these standards precedes a more detailed analysis of the consequences of the Supreme Court’s decision.

Synopsis of the Three Standards

Adoption of the Sixth Circuit’s “intermediate” standard, the position urged by the Petitioner, would create Title VII liability only when an employer retaliates against an employee by materially and adversely changingthe terms, conditions, or privileges of her employment. Brief for Petitioner at 19. An employer who, for example, significantly changed a plaintiff´s employment status by hiring, firing, or failing to promote her because she opposed sexual or racial discrimination would face Title VII liability under this standard. Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998). An employer would also be barred from changing an employee’s formal title or position, reducing her salary, or significantly modifying her job responsibilities in retaliation for opposing discriminatory practices. Id. Furthermore, severe or pervasive harassment of such an employee would qualify as actionable retaliation. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). See also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)(holding that “extreme” or “abusive” harassment qualifies as adverse employment action).

If the Supreme Court upholds Petitioner’s interpretation of the term “materially adverse,” an employer would not incur Title VII liability when it either (a) modified the mix of responsibilities an employee performed within her existing job classification, or (b) issued a temporary suspension, subject to a formal review and final decision by senior company officials. Ellerth, 524 U.S. at 762. See also Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004).

Adoption of the Ninth Circuit’s standard—the most permissive rule, and the rule urged by the Respondent—would create Title VII liability when an employer engages in any adverse treatment “reasonably likely to deter” the plaintiff from engaging in a protected activity, such as filing a sex discrimination complaint with the EEOC. See Henderson, 217 F.3d at 1243. Under this more expansive interpretation, not only discrete, formal employment decisions, such as terminating, transferring, or reducing compensation but also non-tangible, informal employment decisions could potentially generate Title VII liability. See, e.g., Knox v. State of Indiana, 93 F.3d 1327, 1334 (7^th Cir. 1996) (“There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a complaint.”).

Finally, adoption of the third and most stringent standard would only expose employers to Title VII liability when they engaged in an ultimate employment action causing direct economic harm, such as termination, lateral job transfer, or denial of promotion. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).

Consequences of the Supreme Court’s Decision

Adoption of the permissive standard advanced by the Respondent would most fully promote the anti-discrimination policies articulated in Title VII. Brief of the National Women´s Law Center et al. as Amici Curiae in Support of Respondent [hereinafter “Amicus Brief”]. Under this standard, any employer action reasonably likely to deter an employee from opposing discrimination would qualify as an adverse employment action subject to Title VII liability. This would mean that an employee contemplating charging, testifying, or assisting in a discrimination investigation, hearing, or other proceeding, would have greater confidence that any subsequent retaliation by her employer would be fully remedied. See Edward A. Marshall, Excluding Participation in Internal Complaint Mechanisms from Absolute Retaliation Protection: Why Everyone, Including the Employer, Loses, 5 Employee Rts. & Employee Pol´y J. 549, 586-87 (2001). Furthermore, exposing employers to liability for both tangible and non-tangible employment decisions would limit their ability to develop and exploit more subtle tactics to punish discrimination opponents, such as verbally harassing victims, selectively enforcing workplace strictures, or maliciously refusing to accommodate employee’s scheduling requests or other needs. These informal employer actions, particularly when pursued together, may effectively discourage the most stalwart employees from actively opposing discrimination, thereby frustrating Title VII’s purposes. Amicus Brief at 5.

On the other hand, adoption of this standard risks inadvertently exposing innocent employers to liability for non-retaliatory actions. See White,364 F.3d at 799; Brief for Petitioner at 46. A court may have considerable difficulty concluding with confidence that an employer deliberately retaliated against an employee when the alleged misconduct largely consists of informal, non-tangible decisions. Brief for Petitioner at 10, 46, 48. Incorrect verdicts, therefore, may occur with greater frequency. Cf. Brief for Petitioner at 46-48. Even where the retaliatory intent is clear, focusing on tangible actions that inflict concrete economic harm, rather than more subtle forms of employer retaliation, may prove a more efficient use of scarce judicial and administrative resources.

Moreover, the unusual elasticity of the deterrence standard, which lacks a clear definition or concrete parameters, may inspire excessive caution among business managers. Fearful of incurring Title VII liability, companies may refrain from implementing critical employment or management changes. Additionally, a more permissive standard invites suits for trivial retaliatory acts, such as “mere inconvenience” to an employee or her “bruised ego,” distracting attention from more egregious retaliatory measures and raising the cost of doing business for all employers. Brief for Petitioner at 49-50. Indeed, “the temptation to litigate would be hard to resist.” Faragher, 524 U.S. at 805. Finally, adopting the “reasonably likely to deter” standard for adverse action against discrimination opponents would anomalously entitle these individuals to greater legal protection than the original victims of the discriminatory act, who, under current law, may only recover for “materially adverse” actions. White,364 F.3d at 799 (“Having a different standard for different provisions of Title VII would be burdensome and unjustified by the test of the statute.”).

Adoption of the ultimate employment action standard, the most restrictive rule, would provide maximum certainty for businesses, which would only incur Title VII liability for a narrow class of discrete employment decisions producing direct economic harm, including termination and denial of promotion. Further, this standard would afford companies broad latitude to manage their businesses and deal with unproductive employees without fear of inadvertently sparking Title VII litigation. Scarce judicial resources could also be completely devoted to remedying plaintiffs who have sustained tangible economic injuries.

Adherence to this rule, however, may undermine enforcement of Title VII protections by encouraging employers to formulate creative stratagems to silence discrimination opponents, including verbally badgering victims, replacing substantive responsibilities with menial labor, transferring an employee to a less favorable office location, or refusing to accommodate an employee’s scheduling needs or other reasonable requests. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Significantly, victims of these employer machinations would be deprived of any meaningful remedy. See White, 364 F.3d at 802.

Adoption of the intermediate, “materially adverse” standard would preserve judicial flexibility to punish retaliatory actions that do not involve formal changes in compensation, position, or title, without inviting suits based on trivial employer actions. Kocsis v. Multi-Care Management Inc., 97 F.3d 876, 886 (6th Cir. 1996). Slight changes in job responsibilities, employee inconvenience, or unduly harsh employer criticism, for example, would not qualify as materially adverse actions. Id. at 886. However, “a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation,” could trigger Title VII liability. Id. at 885-87.