Employment Discrimination and Retaliation Claims: A Legal Analysis of the Supreme Court Ruling in Burlington Northern and Santa Fe Railway Co. v. White

CRS Report for Congress
Employment Discrimination and Retaliation
Claims: A Legal Analysis of the Supreme
Court Ruling in Burlington Northern and
Santa Fe Railway Co. v. White
Jody Feder
Legislative Attorney
American Law Division
Summary
This report discusses Burlington Northern and Santa Fe Railway Co. v. White, a
recent case in which the Supreme Court considered the scope of the retaliation provision
under Title VII of the Civil Rights Act, which prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin. Specifically, the Court held that
the retaliation provision, which bars employers from retaliating against employees who
complain of discrimination, is not limited only to activity that affects the terms and
conditions of employment, but rather covers a broader range of actions that would be
materially adverse to a reasonable employee or job applicant. This new standard is
significant because it clarifies the protection from retaliation that is available to
employees who complain of discrimination and makes it easier for workers to sue for
retaliation.
In June 2006, the Supreme Court issued its decision in Burlington Northern and
Santa Fe Railway Co. v. White,¹ a case that involved questions about the scope of the
retaliation provision under Title VII of the Civil Rights Act, which prohibits
discrimination in employment on the basis of race, color, religion, sex, or national origin.²
In a 9-0 decision with one justice concurring, the Court held that the statute’s retaliation
provision encompasses any employer action that “would have been materially adverse to³
a reasonable employee or job applicant.” This standard, which is much broader than a
standard that would have confined the retaliation provision to actions that affect only the
terms and conditions of employment, generally makes it easier to sue employers if they
retaliate against workers who complain about discrimination. Under the Court’s
interpretation, employees must establish only that the employer’s actions might dissuade

¹ 126 S. Ct. 2405 (2006).
² 42 U.S.C. § 2000e-2(a).
³ Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2408 (U.S. 2006).
Congressional Research Service ˜ The Library of Congress

a worker from making a charge of discrimination. This means that an employee may
successfully sue an employer for retaliation even if the employer’s action does not
actually result in an adverse employment action, such as being fired or losing wages.
Background
In 1997, Sheila White, the only woman working in her department at one of
Burlington Northern’s train yards, complained to company officials that her supervisor
had repeatedly made sexist comments on the job. Although her supervisor was ordered
to attend a sexual harassment training session, White was simultaneously reassigned to
a less desirable job and later was suspended without pay. The company eventually
reinstated White to her original position and awarded her backpay, but White sued,
claiming that both the reassignment and suspension without pay constituted unlawful
retaliation in violation of Title VII.⁴
At trial, a jury agreed with White’s claims and awarded her compensatory damages.
Initially, a panel of the Court of Appeals for the Sixth Circuit reversed the judgment,⁵ but
the full court, sitting en banc, vacated the panel’s decision.⁶ Although the Sixth Circuit
ultimately upheld White’s retaliation claims, the court, like other federal appellate courts
to consider Title VII retaliation claims, differed over the standard to apply to such claims,
and the Supreme Court granted review to settle this question.
Title VII and Retaliation Claims
Under Title VII, it is unlawful for an employer to, among other things, “fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because⁷
of such individual’s race, color, religion, sex, or national origin.” In other words, Title
VII’s anti-discrimination provision protects an employee only from discrimination that
is employment-related. In contrast, Title VII’s retaliation provision prohibits an employer
from discriminating against any employee or job applicant “because he has opposed any
practice made an unlawful employment practice ... or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or⁸
hearing” under Title VII. Since the enforcement of Title VII relies in part on the
willingness of employees to report discrimination, this provision appears designed to
prevent employers from undermining the anti-discrimination purpose at the heart of Title
V II.⁹

⁴ Id. at 2409-10
⁵ White v. Burlington N. & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002).
⁶ White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004).
⁷ 42 U.S.C. § 2000e-2(a).
⁸ Id. § 2000e-3(a).
⁹ The Equal Employment Opportunity Commission received over 22,000 claims of retaliation in
FY2004, a figure that has roughly doubled since 1992. See U.S. Equal Employment Opportunity
Commission, Retaliation (July 19, 2005), [http://www.eeoc.gov/types/retaliation.html]; Linda
(continued...)

These differences in statutory language led to disagreements among a number of
courts about whether a retaliation claim, like a discrimination claim, must be based on an
employment-related action, as well as about how harmful an employment action must be
to constitute retaliation. For example, some appellate courts have required a close
relationship between the retaliatory action and employment by applying the same standard
to retaliation claims that they apply to discrimination claims, namely that the employer’s
action must have an adverse effect on the terms and conditions of employment.¹⁰ Other
courts have applied an even stricter standard that recognizes retaliation only when an
employer’s conduct relates to significant employment-related actions such as hiring,
firing, or compensation.¹¹
In contrast, other circuit courts have taken a more expansive view that applies a
different standard to retaliation claims than is applied to regular discrimination charges.
For example, several courts have required simply that employees demonstrate that the
challenged action would have dissuaded a reasonable employee from making a complaint
of discrimination.¹² The Supreme Court granted review to resolve this dispute among the
lower courts.
The Supreme Court’s Decision in Burlington Northern
Ultimately, the Supreme Court agreed with lower courts that had taken a more
expansive view of the application of the retaliation provision, holding that the provision
encompasses “employer actions that would have been materially adverse to a reasonable
employee or job applicant.”¹³ The Court relied on both the language and the purpose of
the statute to reach this result.
In analyzing the statutory language, the Court noted that the language of Title VII’s
anti-discrimination provision differs from the language of the retaliation provision “in
important ways.”¹⁴ Under the anti-discrimination provision, the statutory language limits
the scope of the provision to actions that affect the terms and conditions of employment,
but “[n]o such limiting words appear in the anti-retaliation provision.”¹⁵ As the Court

⁹ (...continued)
Greenhouse, Supreme Court Gives Employees Broader Protection Against Retaliation in
Workplace, NY Times, June 23, 2006, at A1.
¹⁰ See, e.g., White v. Burlington N. & Santa Fe Ry., 364 F.3d 789 (6th Cir. 2004); Gunten v.
Maryland, 243 F.3d 858 (4th Cir. 2001); Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.

1997).

¹¹ See, e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); Manning v.
Metropolitan Life Ins. Co., 127 F.3d 686 (8th Cir. 1997).
¹² See, e.g., Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005); Ray v.
Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000); Rochon v. Gonzales, 438 F.3d 1211, 1217 (D.C.
Cir. 2006).
¹³ Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2408 (U.S. 2006).
¹⁴ Id. at 2411.
¹⁵ Id.

noted, “We normally presume that, where words differ as they differ here, ‘Congress acts
intentionally and purposely in the disparate inclusion or exclusion.’”¹⁶
Additionally, the Court examined the purposes behind the anti-discrimination and
retaliation provisions. According to the Court, the anti-discrimination provision reflects
the primary purpose of Title VII, which is to prevent discrimination against certain
individuals. The retaliation provision, on the other hand, is designed to ensure that the
statute’s primary purpose is carried out by preventing an employer from retaliating against
employees who report discrimination.¹⁷
Relying on this difference in purpose, the Court reasoned that Congress did not need
to prohibit anything more that employment-related conduct in order to achieve the
statute’s primary purpose of preventing discrimination. However, the Court noted that
“[a]n employer can effectively retaliate against an employee by taking actions not directly
related to his employment or by causing him harm outside the workplace.”¹⁸ As examples,
the Court cited a case in which the FBI retaliated against an employee by refusing to
investigate death threats made against the agent and his family, as well as a case in which
an employer retaliated by filing false criminal charges against a former employee who had
complained of discrimination.¹⁹ Therefore, the Court reasoned that the purpose behind the
retaliation provision would not be served unless the provision encompassed a broader
range of conduct than the anti-discrimination provision, noting that “[a] provision limited
to employment-related actions would not deter the many forms that effective retaliation
can take.”²⁰
Given these differences in both the language and purpose of the statute, the Court
ultimately held that the retaliation provision is not limited to employer actions that affect
the terms and conditions of employment. Instead, the Court established a standard that
requires an employee to demonstrate that a reasonable employee would have found the
challenged action to be materially adverse. Noting that Title VII’s retaliation provision
does not protect an employee from the “petty slights or minor annoyances” of the
workplace,²¹ the Court stated that a challenged action must be significant enough to
dissuade the average worker from making or supporting a charge of discrimination. The
Court also emphasized that the context matters when determining whether an employer’s
action rises to the level of retaliation. For example, “[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.”²²

¹⁶ Id. at 2412 (quoting Russello v. United States, 464 U.S. 16, 23 (U.S. 1983)).
¹⁷ Id.
¹⁸ Id.
¹⁹ Id.
²⁰ Id.
²¹ Id. at 2415.
²² Id.

Applying the broader retaliation standard to White’s claim, the Court upheld the
original jury verdict in her favor.²³ Although Burlington Northern eventually reversed its
decision to reassign White and suspend her without pay, the company’s actions were
deemed sufficiently harmful to dissuade an employee from reporting discrimination. In
a concurring opinion, Justice Alito disagreed with the majority’s standard for retaliation
claims. Instead, Justice Alito favored a narrower interpretation that would have limited
retaliation claims to conduct that affects the terms and conditions of employment,
although he would have upheld White’s retaliation claim under this standard.²⁴
Conclusion
Although the Burlington Northern case involved retaliation against an employee who
made charges of sex discrimination, the decision applies more widely to employees who
claim retaliation for reporting any kind of discrimination prohibited by Title VII. In
addition, because the Court’s decision in Burlington Northern means that a broader range
of employer actions may constitute unlawful retaliation, it should become easier for
employees to file retaliation claims. Therefore, the number of Title VII retaliation claims
filed with the Equal Employment Opportunity Commission or in federal court may be
expected to increase in the future.

²³ Id. at 2416.
²⁴ Id. at 2421.