• Supreme Court Broadens Anti-Retaliation Standards
  • July 7, 2006 | Authors: David K. Haase; Emma J. Sullivan
  • Law Firm: Jenner & Block LLP - Chicago Office
  • Historically, the Courts of Appeals have been split on whether an employee must demonstrate that a term or condition of employment has been adversely impacted to establish a claim of retaliation.  On June 22, 2006, the United States Supreme Court decided the issue, holding that while an employee must meet that threshold to state an actionable claim for discrimination under Title VII, to state an actionable claim of retaliation, an employee need only show that the challenged action is "materially adverse."  See Burlington Northern & Sante Fe Railway Co. v. White, No. 05-259, 2006 WL 1698953 (2006).  In doing so, the Court clarified that the scope of actions that trigger Title VII's anti-retaliation provisions are broader than those that trigger Title VII's non-discrimination provisions. 

    With regard to what constitutes a "materially adverse" action that would support a claim for retaliation, the Court stated that the definition would include any action that may "dissuade" a reasonable worker from making or supporting a charge of discrimination."  The Court clarified that the "materiality" requirement prevents petty slights and minor annoyances from supporting claims of retaliation.  The Court also clarified that the reasonable person standard applies when determining if an action is materially adverse, to eliminate uncertainties and unfair discrepancies that can occur when courts must ascertain a plaintiff's subjective feelings.  In addition, the Court stated that whether a challenged action may support a claim of retaliation will depend on the context of the situation, whereby a schedule change or a supervisor's refusal to invite an employee to lunch may constitute materially adverse actions in some cases, but not in others.  The Court explained that the schedule change may be sufficiently adverse in the case of a "young mother with school age children," and that exclusion from lunch may support a claim of retaliation if the employee is not invited to "a weekly training lunch that contributes significantly to the employee's professional advancement."  Prior to this decision, some courts had held that actions such as schedule changes and exclusions from lunches or meetings were insufficient to support a claim of retaliation.

    The Supreme Court remanded the White case for a determination of whether reassignment of duties and a 37-day suspension constituted materially adverse actions under the facts of the case, indicating that such determinations must be made by a jury.