Supreme Court Redefines Retaliation

In a decision of far-reaching significance, the U.S. Supreme Court announced the standard to be used by courts in determining whether an employer’s action constitutes retaliation after an employee exercises his or her rights under an antidiscrimination law. Specifically, the Court addressed whether the anti-retaliation provision of Title VII of the Civil Rights Act limits a plaintiff to alleging retaliation only when the employer’s adverse actions affect the terms, conditions or status of the plaintiff’s workplace employment, and how damaging the adverse actions must be.

Previously, some Appellate Courts required that in order to allege retaliation there had to be an adverse employment action on the part of the employer that constituted a change in the terms or conditions of the employee’s employment. However, in Burlington Northern & Santa Fe Railway v. White, the Supreme Court concluded that anti-retaliation provisions are not restricted to actions that occur as a result of employment or in the workplace. Rather, an employer’s adverse actions may be considered retaliation against an employee when not related to employment (e.g., causing emotional distress requiring medical treatment), in violation of anti-retaliation provisions.

The Court further concluded that the plaintiff must show the employer’s actions were so adverse as to dissuade a reasonable worker in the employee’s circumstances from making a charge of discrimination. An important aspect of this new standard is that courts must consider the employee’s particular situation. The Court suggested that similar protections may be applicable to comparable statutes, likely to include the ADA, which closely follows Title VII in procedural issues and anti-retaliation language.

Burlington Northern & Santa Fe Railway v. White, 126 S.Ct. 2405 (June 22, 2006).