In late June, the Supreme Court gave workers added protection against retaliation when it handed down a unanimous decision in the case of Burlington Northern v. White. Sheila White was a forklift operator with a railway company, the lone female worker in her department. After her male supervisor made harassing comments, White filed an internal complaint. The supervisor was suspended and ordered to attend sexual-harassment training. In the meantime, however, White was demoted from forklift duty to standard track laborer tasks, with the only explanation given that coworkers complained that a “more senior man” should have the “less arduous and cleaner job” of forklift operator. White was also placed under surveillance and her daily activities were monitored. In addition, White was suspended for 37 days for claimed insubordination. Ultimately, the company determined that White was not insubordinate and reinstated her.
White sued Burlington Northern, claiming that her change in job responsibilities and her suspension constituted unlawful retaliation prohibited by Title VII (the portion of the Civil Rights Act of 1964 that forbids discrimination in employment on the basis of race, color, religion, sex, or national origin). Burlington Northern argued that these actions did not constitute retaliation.
The Supreme Court was asked to determine the reach of the anti-retaliation provision in Title VII. In other words, of what nature—and how serious—must retaliation be to support a claim? Before the Supreme Court’s decision, circuit courts applied different tests to determine what constituted retaliatory discrimination. Under some circuit courts’ formulations, an employee needed to have an “ultimate employment action” (typically, a firing) to bring a claim of retaliatory discrimination under Title VII. Other circuit courts only required that the employment action be “materially adverse” to a reasonable employee.
In resolving the question, the Supreme Court held that the anti-retaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, the protection extends beyond workplace- or employment-related retaliatory acts and harm. In addition, the Supreme Court adopted the standard more favorable to employees. Under that standard, a worker must show that a reasonable employee would have found the employer’s action materially adverse. In the context of employment discrimination cases, a worker must show that the action might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
While the Supreme Court’s decision is certainly favorable to employees, the Court didn’t extend protection as far as some observers had hoped. Under the new standard, an employer’s adverse actions must be “material.” Thus, as the Court phrased it, an employer’s “petty slights, minor annoyances, and simple lack of good manners”—such as snubbing a co-worker or not inviting a co-worker to lunch—will not suffice to constitute retaliation. One observer has argued that this limitation—because many employees fear the loss of social support that the Court dismisses as “trivial”—would deter many employees from reporting discrimination.
Of course, Supreme Court decisions are extremely significant because, in addition to deciding the current case, the precedent established will apply throughout the country in all future cases. The Burlington Northern decision should give employees greater protection against retaliation for filing discrimination complaints. Particularly, working mothers may benefit from the flexible, employee-centered standard approved in Burlington Northern. As the Court observed, “a schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.” (Burlington Northern v. White at 2415.)
Burlington Northern was not the only victory for workers in the Supreme Court this year. In an earlier case, IBP v. Alvarez, also decided unanimously, the Supreme Court held that employers must compensate employees for the time spent to put on special protective clothing and the time spent to travel from the changing room to the production line. While the case involved food processing workers, all employees who are required to don special protective gear will be protected under the new standard.
In Ash v. Tyson Foods, the Supreme Court unanimously overturned a lower court’s ruling concerning racial discrimination. The lower court had ruled that a plant manager’s use of the word “boy” (to refer to black employees) alone was not evidence of discrimination, unless “boy” were modified by a racial classification (e.g. “black boy” or “white boy”). In finding this reasoning to be erroneous, the Supreme Court ruled that the use of the word “boy” alone may be evidence of discrimination, depending on such factors as context, inflection, tone of voice, local custom, and historical usage.(Ash v. Tyson Foods at 1197.)
The only blemish on the Supreme Court’s record with respect to workers came in the case of Garcetti v. Ceballos. In a close 5-4 decision, the Supreme Court declined to extend First Amendment protection to a deputy Los Angeles County prosecutor who had blown the whistle on potential wrongdoing in his office.
Even factoring in the Garcetti loss, workers had reason to be pleased with the Supreme Court’s decisions this past year. Will the Supremes keep up this trend in the next term?