Burlington Northern & Santa Fe Railroad Co. v. White


Does an employer engage in an adverse employment action, and thereby violate Title VII of the Civil Rights Act of 1964, when he retaliates against an employee who files a discrimination claim by temporarily suspending her without pay and reassigning her to a position with different responsibilities?

Oral argument: 
April 17, 2006

Title VII of the Civil Rights Act of 1964 forbids employers from retaliating against an employee who opposes discriminatory practices. However, the requisite provision, 42 U.S.C. § 2000e-3(a), does not define what kinds of adverse employment decisions are actionable. Courts of appeal have adopted three different standards to guide this determination: the Sixth Circuit prohibits any “materially adverse change in the terms of employment;” the Ninth Circuit prohibits any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an “ultimate employment decision.” In this case, the Sixth Circuit held that a temporary suspension rescinded by the employer with full back pay, or an inconvenient reassignment, constituted actionable adverse employment decisions. The Supreme Court must now determine which of the foregoing standards is correct.

Questions as Framed for the Court by the Parties 

Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment" (including a temporary suspension rescinded by the employer with full backpay or an inconvenient reassignment, as the court below held); for any adverse treatment that was "reasonably likely to deter" the plaintiff from engaging in protected activity (as the Ninth Circuit holds); or only for an "ultimate employment decision" (as two other courts of appeals hold).


On June 23, 1997, Burlington Northern hired Sheila White to work in its Maintenance of Way department at the Tennessee Yard. White v. Burlington Northern & Santa Fe Railroad Co.,364 F.3d 789, 792 (6th Cir. 2004). Marvin Brown, roadmaster of the Yard, assigned White to operate the forklift, a position formerly held by Ralph Ellis until his June 1997 resignation. Id.

White competently performed all of her job responsibilities. Id.No complaint was ever filed against her, and Bill Joiner, her immediate supervisor, testified that she had no problems doing her job and cooperated well with colleagues. Id.

Despite her blemishless record, White endured the “general anti-woman feeling” pervading the Tennessee Yard. Id.Joiner and several other employees repeatedly expressed to her their conviction that women should not work on a railroad or in the Maintenance of Way department. Id.White complained to Brown and other company officials after several specific episodes of sexual harassment. Id. A formal investigation substantiated White’s allegations, and BN suspended Joiner for 10 days and directed him to attend sexual discrimination training. Id.

On September 16, 1997, Brown informed White that the sexual harassment investigation had uncovered complaints regarding White’s work in the forklift position. Id.Joiner and other employees insisted that “a more senior man” should occupy the coveted forklift position, which was less physically strenuous than other positions. Id.Burlington reassigned Ellis, the sole suitable replacement, to operate the forklift. Id. at 793. Ellis, who had voluntarily resigned from forklift operator for a higher-paying post, had neither complained about White’s performance nor requested a transfer back to the forklift position. Id.

On September 26, 1997, Brown reassigned White from forklift operator to a standard track laborer position. Id.at 792. Although her pay and benefits remained the same, the new job was “dirtier” and more physically demanding. Id.at 793. Burlington Northern insisted that its collective bargaining agreement mandated that a more senior employee occupy the forklift position; however, Brown testified at trial that he had unfettered discretion to fill the post. Id.On October 10, 1997, White filed her first discrimination charge with the Equal Employment Opportunity Commission (EEOC). Id.After Brown allegedly placed her under increased surveillance and began scrutinizing her work more closely, she filed a second EEOC charge, which Brown received on December 8, 1997. Id.

On December 11, following alleged insubordination by White, while working with a deployed train gang, Brown suspended White without pay. Id.The foreman Percy Sharkey, who supervised the gang, testified that White rebuffed his instruction to her to ride with foreman James Key. Id.White testified that when she approached Key for a ride, he ignored Brown’s order by insisting Nelson, rather than White, ride with him. Id.

White filed a grievance with her union following the suspension. Id.at 794. In mid-January, after 37 days without pay, the grievance hearing officer concluded that White was wrongfully suspended and reinstated her with full back pay. Id.White filed suit against Burlington Northern in the district court, alleging sex discrimination and retaliation in violation of Title VII. Id.The jury awarded White $43,500 in compensatory damages on her retaliation claim. Id.


The “Materially Adverse Change” Standard

The first standard the Supreme Court will consider is the “materially adverse change in the terms of employment” standard, which is the standard the Sixth Circuit applied in the present case, and the standard followed by eight other circuits. According to the Sixth Circuit in the present case, “A ‘mere inconvenience or an alteration of job responsibilities’ or a ‘bruised ego’ is not enough to constitute an adverse employment action.” White, 364 F.3d at 797 (quoting Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987). The Court of Appeals agreed with the district court’s holding that both the job transfer and the suspension without pay were “materially adverse change[s] in the terms of employment.” Id. at 802-3. The Court of Appeals said that “[t]aking away an employee’s paycheck for over a month is not trivial, and if motivated by discriminatory intent, it violates Title VII.” Id. In regards to the job transfer, the court said that the “forklift position required more qualifications, which is an indication of prestige.” Id. Furthermore, the Court of Appeals noted that Burlington Northern’s witnesses said that the forklift operator was viewed as objectively a better job, and that “the male employees resented White for occupying it.” Id. In so holding, the Court of Appeals rejected the “ultimate employment decision” standard (discussed below). Id. at 801. If the Supreme Court adopts this standard exactly as the Sixth Circuit pronounced it, they will affirm the Court of Appeals holding.

The “Reasonably Likely to Deter” Standard

The second standard the Supreme Court will consider is the “reasonably likely to deter” standard. The Ninth Circuit has held that “adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). In the present case, the protected activity would be White’s sexual harassment complaint, and the adverse treatment would be moving White from her job as a forklift operator to a job as a track laborer. The Ninth Circuit’s holding is based on an EEOC interpretation of “adverse employment action” which says that “any adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual Section 8, “Retaliation,” Paragraph 8008 (1998). Under the Ninth Circuit’s standard, the question thus becomes: was moving White from her job as a forklift operator to the job of track laborer “adverse treatment” that would deter her and others from reporting sexual harassment? This question would likely be decided on remand (rather than by the Supreme Court).

Petitioner asserts that the “reasonably likely to deter” standard “means that most trivial workplace conduct would become subject to litigation.” Brief for Petitioner at 46. Respondent counters that there has been “no tsunami of baseless Section 704(a) claims [that] has swept over the district courts in the Ninth Circuit.” Brief for Respondent at 34. Respondent White goes on to make the argument that summary judgment is always available in cases where there is “insufficient evidence of a retaliatory motive.” Id. at 34.

The “Ultimate Employment Decision” Standard

Two circuits, the Fifth Circuit and the Eight Circuit, have adopted the approach that Burlington Northern urges the Supreme Court to adopt, the “ultimate employment decision” approach. This is the most restrictive approach of the three approaches being considered by the Court. In Mattern v. Eastman Kodak, the plaintiff employee filed suit against Eastman Kodak under Title VII, Section 704, as in the present case. 104 F.3d 702 (5th Cir. 1997). The plaintiff alleged that she was subject to sexual harassment and subsequent retaliation for complaining about the alleged harassment. The Court of Appeals held that plaintiff failed to show “an ultimate employment decision.” Id. at 708. An ultimate employment decision, according to the Fifth Circuit, includes acts “such as hiring, granting leave, discharging, promoting, and compensating.” Id. at 707 (quotation omitted). “Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.” Id. Because there was no “ultimate employment decision” in the instance case, there could not have been retaliation by the company under this standard.


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 (7th 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.


This case represents a classic circuit split. There are three different interpretations of the same statute amongst the various circuits, and the Supreme Court must now decide which one to accept. The decision will have far-reaching consequences for employer-employee relationships. If the court chooses the most restrictive of the three standards, the “ultimate employment decision” standard, then it will be very difficult for plaintiffs like Respondent White to prevail in situations where there is no clear change in employment status. If the Sixth Circuit is told to apply this standard, they will likely find that Burlington Northern’s actions were not actionable—White was assigned to a job without a reduction in pay or a clear change in rank.

Under either the Ninth Circuit “reasonably likely to deter” standard or the “materially adverse change in the terms of employment” standard, White will likely win on remand. But for future plaintiffs, it seems sufficiently clear that the “materially adverse change in the terms of employment” standard will be the second most restrictive of the three standards under consideration. While the plaintiffs will have to show something less than an “ultimate employment decision,” a simple reassignment to a less desirable job, all other things being equal, will not represent actionable employer retaliation. Finally, the most employee-friendly standard would be the Ninth Circuit’s standard, where the employee will only have to prove that the employer’s action—in White’s case the reassignment—was “reasonably likely to deter” the employee from undertaking the protected action.

Written by:

Ari Selman

Aseem Gupta