Retaliation can take many forms inside or outside the workplace. Employers need to be extra careful in policing against retaliation due to a recent U.S. Supreme Court decision, Burlington Northern & Santa Fe Railway Co. v. White, which broadened the scope of Title VII retaliation provisions. The decision is important to understand to properly prevent and defend against retaliation claims under Title VII, and other employment laws such as the Americans With Disabilities Act and the Age Discrimination in Employment Act.

Burlington Northern & Santa Fe Railway Co. v. White

Sheila White was hired as a laborer and forklift operator at Burlington Northern & Santa Fe Railway Co. ("Burlington"). White was the only female employee in the maintenance department. She complained to her employer when her direct supervisor made comments that women should not be working in the maintenance department, and other insults in front of her male coworkers. White's supervisor was subsequently suspended for ten days and required to attend a sexual harassment seminar.

White was reassigned from forklift operator to laborer after the incident occurred. White then filed a complaint with the Equal Employment Opportunity Commission ("EEOC") for retaliation by her employer for changing her job position after she made the complaint about her supervisor and for increased monitoring of her work by her employer.

Soon after, White and another supervisor disagreed about a matter which resulted in a report of insubordination and White's suspension without pay for 37 days. Through an investigation, Burlington found White was not insubordinate and reinstated her with back pay. White filed another EEOC complaint and filed suit in federal court alleging a Title VII retaliation claim.

The Court's Findings

1. The anti-retaliation provision is not limited to actions or harms related to employment or that occur at the workplace.
2. The provision covers only employer actions that would have been materially adverse to a reasonable employee or applicant; or the employer's actions had to be harmful to where they could dissuade a reasonable employee from making or supporting a charge of discrimination.
3. A reassignment of duties without a demotion can be retaliatory discrimination.
4. A suspension may be materially adverse even though the employee is reinstated with back pay.

Steps For Employers to Take

• Review and revise policies on discrimination and harassment and make sure retaliation is properly addressed.
• Redistribute the policies and obtain employee signatures acknowledging they received and understood the policies.
• Provide discrimination and harassment training and make sure retaliation is addressed.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

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