Title VII’s prohibition against retaliation “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace,” the U.S. Supreme Court ruled June 22, 2006 in Burlington Northern Santa Fe Railway Co. v. White. Noting that the statutory terms “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee” that appear elsewhere in Title VII explicitly limit the scope of discrimination claims to those that “affect employment or alter workplace conditions,” an eight-member majority of the Court held that “the anti-retaliation provision has no such limiting words.”

In explaining the breadth of its holding, the Court wrote that Title VII’s substantive and anti-retaliation provisions “differ not only in language but in purpose as well.” “The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.” The Court further reasoned that if the anti-retaliation provision is read to only protect an individual from harm inside the workplace, “it would not deter the many forms that effective retaliation can take.”

Cautioning that its holding should not be construed too broadly, however, the Court stated that the antiretaliation provision comes into play only if retaliation has “produced an injury or harm.” To satisfy this standard, a plaintiff must demonstrate that a “reasonable” employee would have found the challenged action “materially adverse” — i.e., it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” This separates significant harms from trivial harms.

The standard is framed in “general terms,” the Court explained, because the “significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”

What does this mean for employers? Most significantly, it is no longer an employee’s prima facie burden under Title VII to establish the existence of an “adverse employment action” such as a non-hire, demotion, or termination decision — a significant departure from prior Sixth Circuit law. That bright line test has now been replaced by a grayer fact-intensive inquiry — which could even reach well beyond work-related issues into an employee’s personal and home life. Relatively minor workplace events, such as a change in an employee’s schedule, might now be actionable. It all depends upon the circumstances. In the Court’s view, such a schedule change “may make little difference to many workers, but may matter enormously to a young mother with school age children.”

Deciphering a plaintiff ’s burden under the “materially adverse” causation standard will be a challenge for litigants. What factual proofs must a plaintiff proffer to establish that an employer’s allegedly retaliatory action would have “dissuaded a reasonable worker from making or supporting a charge of discrimination”? As Justice Alito noted in a separate opinion (he concurred in the judgment but disagreed with the majority’s interpretation of the anti-retaliation provision), “the majority’s interpretation contains a loose and unfamiliar causation standard…. [I]n an area of law in which standards of causation are already complex, the introduction of this new and unclear standard is unwelcome.”

Burlington will inevitably be interpreted by the plaintiffs’ litigation bar as an employee-friendly decision. In many respects it is. While the significance of the Court’s holding regarding outside-the-workplace conduct remains to be seen, the broadened categories of workplace conduct that are potentially actionable will undoubtedly fuel many new Title VII retaliation claims.

Elizabeth Hardy

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