Burlington Northern V. White

The Supreme Court gets it right again. In an 8-1 decision, the Supreme Court maintained the view that employers who retaliate against employees for civil rights or sexual harassment claims cannot get away with retaliation by taking actions that are negative but have no real economic impact on the complaining party. White operated a forklift for Burlington Northern. White’s immediate supervisor is alleged to have made a variety of insulting and inappropriate remarks to her in front of her co-workers as well as making repeated statements that women should not be working for the track maintenance division. White complained and Burlington Northern did punish her supervisor. But they also transferred her to less desirable work within the same job description. When White complained, they suspended her for insubordination. She was later returned to work and given partial compensation for her suspension. But the overall effect was obviously negative. After exhausting her administrative remedies, White sued Burlington Northern under Title VII of the Civil Rights Act. Title VII has an anti-retaliation provision that “forbids employer actions that discriminate against an employee because he has opposed a practice that Title VII forbids or has make a change, testified, assisted, or participated in a Title VII investigation, procedure, or hearing.” (Burlington vs White slip opinion the beginning of Section II, page 7 of 29). The defense argued that retaliation must involve economic harm. Certain of the federal circuits have agreed with this. Other circuits followed the position advocated by White that any change that would have been material to a reasonable employee and could possibly deter a worker from making or supporting a charge of discrimination could count as harassment under Title VII law.

The benefits of a broad interpretation of “harassment” are fairly obvious: they provide greater protections for employees against actions that are genuinely harassing. The costs are more controversial. A stronger definition of harassment could place some businesses in a difficult position. If an employee files a fraudulent claim in order to protect themselves against well-deserved or completely lawful job changes that were planned independently of any harassment, the employee could use the new harassment law to prevent their employer from doing what the employer planned to do anyway. Nevertheless, the Supreme Court, and I believe rightly so, determined that it was more important to protect the rights of innocent people from unjust treatment in the workplace than to protect the employer from the risk of a chilling effect on business decisions in the face of litigious employees.

The court used appropriate means of statutory interpretation to determine exactly what Congress’ actual intent was when they passed the anti-harassment provisions of Title VII. They noted that the Congress used different language in the normal anti-discrimination provision and in the harassment provision. In a classic common law analysis they found, “We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion of or exclusion.” (Ibid. page 10). The court further stated: “Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” In other words, if you read the statute and look at what it was designed to accomplish, it was clear that Congress wanted to make sure that employers didn’t do anything that would deter people from fully participating in anti-discrimination law. It was not their intention to limit the provisions against retaliation to changes in a person’s job title or salary. The court defines their new standard: “In our view, plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a change of discrimination.” (Ibid. page 16). The materiality requirement excludes trivial or insignificant harms. Certain changes in duties, prestige or status could easily be material even though they do not relate to salary or job description. The court gives example of things that may seem trivial but under certain circumstances could be significant retaliation. A change in work schedule that interferes with the person’s family life, or a refusal to invite the employee to a weekly training lunch, are examples given by the court of possible material harassment.

Overall, the court’s decision is a good one. It continues to work for justice in the workplace. The opposite decision, requiring changes in matters such as salary or job description before workplace changes could rise to the level of harassment, would have regularly allowed employers to engage in ill treatment of those participating in Title VII anti-discrimination claims. There are all sorts of things an employer can do to hurt an employee without actually affecting job description, salary or similar matters. The court’s decision will help deter employers from such unjustified common cruelty. It is true that there will be a cost to employers based upon those who misuse the statute to try to gain unfair advantage. But this is always a risk of any law. Any time you have a legal standard, someone can misuse it by making false accusations or claims. Nevertheless, the importance of justice is not eliminated by the possibility of other injustices. In addition, I believe the court properly interpreted the Congress’ intent. If Congress wants the other standard, they can always pass a law clarifying that fact. But the court’s findings in this case are consistent with what appears to be the overall intent of the statutory scheme.