Retaliation After Burlington Northern v. White: A Uniform Standard

7/13/2006

I. INTRODUCTION

When an employee has complained of discrimination (or comes forward in support of another person’s claim), what employer action constitutes unlawful retaliation? The most obvious types of retaliation recognized by all of the Circuit Courts are denial of promotion, refusal to hire, denial of job benefits, demotion, and discharge. But what about threats, reprimands, negative evaluations, harassment, changes in work schedule, refusal to train, unpaid suspension, unwanted transfers or reassignment, denying a request for transfer, etc.-- will these acts satisfy the adverse employment action requirement for unlawful retaliation?

Prior to Burlington Northern v. White, you would have used a different standard to answer that question depending upon which U.S. coast you were standing on. Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259, --- S.Ct. ----, 2006 WL 1698953 (June 22, 2006). Justice Breyer, writing for a unanimous Supreme Court, resolved the circuit split and set out the following new standard for retaliation cases going forward: 1) the retaliatory act must be "materially adverse," significant as opposed to trivial; and 2) the retaliatory act must be such that it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination" determined from an objective standpoint. The “materially adverse action” is not just confined to action affecting employment or the workplace, but it can be something broader. Id. at *3

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