Thursday, June 22, 2006

News Flash: Supreme Court Adopts a Broader "Material Adverse" Standard for Title VII Retaliation Claims

4united_states_supreme_court_112904_7Update:  Having now read the opinion and concurrence in more detail, it turns out that the majority opinion actual adopts the standard of the D.C. Cir. and 7th Cir. which adopts a material adverse standard unhinged to terms and conditions of employment. Unlike the 6th Circuit standard discussed below, this new standard adopted by the Supreme Court does not "confine the actions and harms [the retaliation provision] forbids to those that are related to employment or occur at the workplace."  In this sense, the Supreme Court adopted a broader materially adverse standard than the one adopted by the en banc 6th Circuit (and the one which Justice Alito appears more comfortable with).

The United States Supreme Court has handed down its decision in the much anticipated Title VII retaliation case of Burlington Northern v. White, No. 05-259 (U.S. June 22, 2006).

At issue (and as discussed in previous posts here and here) was a circuit split over the meaning of an "adverse employment action" under the retaliation provisions of Section 704.  Prior to this case, the circuit courts split into three different camps:

[T]he Sixth Circuit prohibits any "materially adverse change in the terms of employment;" the Ninth Circuit prohibits any adverse treatment "reasonably likely to deter" the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an "ultimate employment decision."

In Burlington Northern, a case in which an black female employee claimed that she was retaliated against for claiming sexual harassment by her railroad employer by being temporarily suspended and being given an inconvenient job reassignment, the Sixth Circuit, applying the "materially adverse" standard, had found that the company had engaged in actionable retaliation.

Today, the Supreme Court affirmed the Sixth Circuit's decision and officially adopted the "material adverse" standard to determine whether an "adverse employment action" has occurred for Title VII retaliation purposes.

Writinng for the Court (with Justice Alito filing a concurrence by himself), Justice Breyer held:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also
conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present
context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.

More to follow on this important Title VII case after I am able to more fully read both the Court's opinion and Justice Alito's concurrence more carefully.

PS

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