The Extent of the Civil Rights Act to Workpace Related Actions

Burlington, N. & S. F. R. Co. v. White

The Civil Rights Act forbids discrimination against any individual based on “race, color, religion, sex, or national origin” and forbids an employer from “discriminate[ing] against” an employee or job applicant because the individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding.

White was given a job with Burlington Northern & Santa Fe Railway Co s in the “Maintenance of Way” department as a “track laborer” where she operated a forklift. White later successfully complained that her superior (Joiner) had made insulting and inappropriate remarks to her. At the same time that White was informed of Joiner’s discipline she was informed that she would be transferred to less desirous work because her coworkers felt a “more senior man” should have the forklift job. White complained that the reassignment amounted to gender-based discrimination and retaliation for her earlier complaint. She filed a second retaliation charge, claiming that she was placed under surveillance. She later filed another retaliation charge after she won a grievance over her suspension her role in a dispute. The question here is whether the Civil Rights Act only covers workplace related actions, and how harmful that action must be.

The Sixth Circuit applies the same test to retaliation actions as it does to bare discrimination actions: there must have been “a materially adverse change in the terms or conditions [or benefits]” of employment. Other circuits have relied on “ultimate employment” decisions (hiring, firing, granting leave, promoting, and compensating). Other circuits have required only that the action taken would have dissuaded a reasonable employee or a broader rule requiring “adverse treatment … reasonably likely to deter [someone from] engaging in protected activity.”

The Court does not accept the Solicitor General’s argument that the anti-retaliation portion should be read to embody the same perimeter as the anti-discrimination portion of Title VII. Title VII’s substantive anti-discrimination portion uses limiting words like “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment” (etc.) when referring to prohibitions on employers, whereas its anti-retaliation portion simply prohibits an employer from “discriminat[ing] against” its employees. Therefore, assuming Congress acts deliberately where it differs in wording, the scope of the two sections are different as per congressional intent. Additionally, the nature of the harm to be addressed by the anti-retaliation portion requires a greater scope than that of the anti-discrimination portion.

The Court distinguishes a previous case raised by the Government by explaining that the more stringent standard in Burlington Industries Inc. v. Ellerth was used to determine where an employer should be vicariously liable, without an affirmative defense, for the actions of his supervisor. There is also some discussion of the EEOC guidelines and a rehashing of the argument from broad purpose.

Title VII does not reach “trivial” matters, but requires material adversity to a reasonable employee. The Court notes that “the significance of any given act of retaliation will often depend on the particular circumstances” while implying that the significance at issue is the “social impact.” Responding to Justice Alito’s concurring opinion, the Court argues that this standard does not require an evaluation of the nature of the discrimination but rather is focused on the retaliatory act itself.

The Court then addresses this case in particular. It argues that there is no protection from the consideration of material adversity for Burlington in the fact that the reassigned position was within the original job description, since by common sense reassignment within the job description would be an effective method of retaliation, especially considering the objective evidence that a real distinction within the duties in White’s job description existed. Burlington, in what seems to be based on the “ultimate employment” theory, also argues that the suspension was not severe enough to trigger Title VII; an argument the Court does not find persuasive. Nor does the Court see a lack of evidence.

Justice Alito, concurring in judgment, argues that the majority’s opinion is flawed because on that reading “victims of discrimination based on race, color, sex, national origin, or religion—receive less protection than victims of retaliation. In addition, respondent’s interpretation “makes a federal case” out of any small difference in the way an employee who has engaged in protected conduct is treated.” Alito would read the objective standard, invoked by the majority, into the law by appealing to the substantive portion and by reading the retaliation portion to cover precisely the same violations. Retaliation would only be protected as a “tangible employment action,” similar to “ultimate employment.” Alito argues that employers are more likely to retaliation “on the job” but that at the same time this test is not limited to “on the job” retaliation. Justice Alito also attacks the majority’s “reasonable person” standard, arguing that the reasonable person described requires some subjective aspects. In any case, the reassignment was, according to Alito, tantamount to a demotion, and thus passes the “tangible employment”/”ultimate employment” test.