It is widely recognized that Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for a covered employer to discriminate on the basis of "race, color, religion, sex, or national origin." However, although oftentimes overlooked by employers, Title VII makes it equally unlawful for a covered employer to retaliate against employees for making or supporting a charge of discrimination under Title VII. Well, overlook no more.

On June 22nd, the Supreme Court, in Burlington Northern and Santa Fe Railway Co. v. White ("Burlington"), extended Title VII's scope beyond workplace or employment-related retaliatory acts and harm, and explicitly ruled that actionable retaliation is not limited to ultimate employment decisions.

The Supreme Court accepted the Burlington case in order to resolve the conflicting law resulting from different judicial conclusions about whether alleged retaliation, to be within the scope of Title VII, has to be employment-related or workplace-related and about how harmful the action must be to constitute retaliation. The Court noted that while the Sixth Circuit held that actionable retaliation must "result in an adverse effect on the ‘terms, conditions, or benefits' of employment," the Fifth and Eighth Circuits had "adopted a more restrictive approach...which limits actionable retaliatory conduct to acts ‘such as hiring, granting leave, discharging, promoting, and compensating.' " In Burlington, the Court settled the conflict.

At the outset, the Court cautioned against an overly restrictive interpretation of the anti-retaliation law, noting that a provision limited to employment-related actions, such as hiring, granting leave, discharging, promoting, compensating, etc., would not deter the many other forms that effective retaliation can take, such as reassignment or suspension. The Court reasoned that restrictive interpretation would fail to fully achieve the anti-retaliation provision's primary purpose, namely maintaining unfettered access to statutory remedial mechanisms.

Accordingly, after examining the statutory framework, analyzing the varied approaches, and noting the myriad of forms retaliation can take beyond ultimate employment decisions, the Court adopted a broader interpretation of what conduct is prohibited under Title VII's anti-retaliation provision.

Under this new framework, the Court held that "a 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 charge of discrimination." Despite the resulting impossibility of making a brightline rule or test for employers to follow, the Court deliberately phrased the new standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. The Court noted that a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations, may be material in others.

As an example of its "context matters" approach, the Court noted that 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."

Additionally, given that the import of the Court's opinion had the appearance of being open-ended and leaning in favor of finding potential violations in many otherwise benign circumstances, the Court included in its opinion some qualifying statements highlighting the fact that the anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. The Court also emphasized the need for material adversity in order to separate significant from trivial harms. "Title VII, we have said, does not set forth a ‘general civility code for the American workplace'...An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience."

Applying this new framework in Burlington, the Court had little difficulty in finding sufficient evidence supporting the jury's award of $43,500 in compensatory damages in favor of Sheila White, a Burlington employee. Following her complaints of discrimination, White was reassigned to a less desirable job, suspended for 37 days, but ultimately reinstated with back-pay after an internal investigation was conducted after she complained to the company.

Although refusing to hold that reassignment is always actionable retaliation, the Court found that retaliatory work assignments that require an employee to spend more time performing arduous duties, and less time on those that are easier and more agreeable may be within the scope of protections offered by Title VII. The Court's reasoning was buttressed by the EEOC's findings that work reassignments are often an indication of classic retaliation.

What about the fact that White was provided with back-pay for her suspension after Burlington's internal investigation found that she was improperly suspended? Not enough, the Court held, because many reasonable employees would find a month without a paycheck to be a serious hardship, meeting the definition of "materially adverse." The Court affirmed the lower court's verdict in White's favor.

So, how should an employer handle a charge of discrimination under Title VII? Very carefully. Although the implications of the Burlington decision are yet to be seen, there is no denying that the Court expanded the types of actions that may be deemed materially adverse, and thus actionable under Title VII's anti-retaliation provision. Unfortunately, the Court's context driven analysis precludes the development of a brightline rule for employers and human resources personnel to utilize when developing policy or responses to discrimination. Nevertheless, the Court did provide a frame of reference for challenged conduct: An employer's action will be considered materially adverse if it dissuades a reasonable worker from making or supporting a charge of discrimination.