Retaliation Standard Pre and Post 2006 Burlington
(BNSF Railway Co. v. White, 548 U.S. 53, 57 (2006))
Title VII’s anti-retaliation provision, which is set forth in 42 U.S.C. §2000e-3(a), prohibits an employer from discriminating against an employee or job applicant because that individual opposed a practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.
PRE 2006 BNSF DECISION
Prior to the 2006 Burlington (BNSF) decision there were different standards in analyzing Title VII retaliation claims used by different Circuits. The “Expansive Approach” which defined adverse employment action broadly to include any action that is reasonably likely to deter alleged victims or others from engaging in future protected activity. The “Intermediate Approach” which held that adverse employment action in the retaliation context includes any decision that materially affects the terms and conditions of employment, and finally the “Restrictive Approach.” The Eighth Circuit followed the Restrictive Approach which basically held that only ultimate employment decisions—such as hiring, firing, promoting, and demoting—constitute[d] actionable adverse employment actions is no longer applicable since BNSF Railway Co. v. White, 548 U.S. 53, 57 (2006)(BNSF).
POST 2006 BNSF DECISION
After surveying differing frameworks previously used by the circuit courts in evaluating Title VII retaliation claims and reviewing the legislative history of Title VII and Supreme Court precedent, the Court adopted a modified version of the expansive approach (defined adverse employment action broadly to include any action that is reasonably likely to deter alleged victims or others from engaging in future protected activity).
The questions the Supreme Court sought to answer were:
- Does that provision (Title VII) confine actionable retaliation to activity that affects the terms and conditions of employment? and;
- How harmful must the adverse actions be to fall within its scope?
The Supreme Court answered the first question in the negative, concluding that “Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace–related or employment-related retaliatory acts and harm.” BNSF, 548 at 67. Indeed, a covered retaliatory act could occur inside or outside of the workplace. Id. at 57.
The provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. Id. At 57. “We speak of material adversity because we believe it is important to separate significant from trivial harms. The touchstone for determining whether an adverse action was material depended on whether it was conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.
ACTIONABLE RETALIATION EXAMPLES
Conceding that the distinction between material adversity, which is actionable, and trivial harm, which is not actionable, is no easy task, the Court pointed to context as a critical factor. Id. at 69. The court provided two examples in which context could mean the difference between a successful Title VII retaliation claim and a pretrial dismissal:
- A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. Id.
- A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable, petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. Id.
EIGHTH CIRCUIT ACTIONABLE EXAMPLES POST BNSF
The Eighth Circuit considered a Title VII retaliations claim under the BNSF standard for the first time in Higgins v. Gonzales, 481 F.34d 578 (8th Cir. 2007). In that case a former Assistant United States Attorney alleged two forms of retaliation:
- a fundamental lack of supervision and mentoring; and
- a transfer to a different office.
Id. at 90.
As to the first form of alleged retaliation, a fundamental absence of supervision and mentoring, the plaintiff claimed that the lack of supervision and left her to flounder, which she characterized as a materially adverse action. Id. The Eighth Circuit stated that floundering “might” qualify as a materially adverse action, but held that the employee failed to establish that she was actually left to flounder to such an extent that it would qualify as materially adverse under BNSF: “[The] lack of mentoring or supervision might constitute an adverse employment action under the standard if [the plaintiff] could establish she was actually left to ‘flounder’ or was negatively impacted by the lack of supervision or mentoring.” Id. On the second type of alleged retaliation—transfer to a different office—the court found that this particular lateral transfer did not rise to the level of material adversity because there was “no evidence [the plaintiff’s] new duties were more difficult, less desirable or less prestigious.” Id. at 591.
The Eighth Circuit confronted another Title VII retaliation claim in Recio v. Creighton University, 521 F.3d 934 (8th Cir. 2008). There, the employee, a college professor, cited nine incidents that she claimed were materially adverse.
- extending the duration of the counseling requirement of her probation
- requiring that she maintain a (“M-W-F”) teaching schedule
- shunning by faculty
- failing to provide her prior notification of vacancy in the Spanish faculty
- keeping the temperature in her office too cold
- requiring her to acknowledge her probation in her employment contract
- failing to assign her to teach advanced classes
- denying her the opportunity to teach summer courses
- denying her opportunities to participate in a study program in Spain
All were deemed trivial harms that do not rise to the level of retaliation. Id. at 940.
BNSF helped to more aptly define the line separating materially adverse actions from trivial harms and petty slights in the American workplace, but that border is still very blurry. While ignoring an employee’s repeated phone calls and delegating “difficult work” may constitute trivial harms, leaving an employee to “flounder” under a crush of that work might potentially qualify as materially adverse. The distinction depends on context and it is not easy to discern.
Given these factors, BNSF illuminates the difficult question employers and employment law attorneys should ask themselves in these scenarios—whether a particular action would dissuade a reasonable person from complaining or supporting a compliant about discrimination?
Michael W. Khalili