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On June 22, 2006, the U.S. Supreme Court provided some additional “clarification” regarding employee retaliation protections under Title VII. Retaliation cases arise when an employee or applicant claims that an organization took “adverse action” against them because they filed a discrimination complaint, acted as a witness, or assisted in a discrimination investigation. A key question has always been what constitutes “adverse action?” The Court, in Burlington Northern & Santa Fe Railway Co. v. White, outlined a broad definition, thereby opening the door to more retaliation cases.

In the case, an employee had filed a sexual harassment complaint. The company responded by disciplining the alleged harasser and reassigning the plaintiff from her forklift job to a laborer job that she had held earlier. Her pay and benefits were unchanged. In an unrelated action, the employee was later suspended without pay. The Court sided with the employee, concluding that the reassignment was “materially adverse” because the laborer job involved more physical and dirty work. The temporary suspension was also material.

The Court concluded that an alleged retaliatory act under Title VII does not need to directly impact a term or condition of employment (e.g., a discharge, denial of promotion, placement in a less desirable work assignment). Rather, retaliatory actions include more than these “ultimate” or “tangible” adverse employment acts and include those that would be “materially adverse to a reasonable employee or job applicant” either on or off the job. Basically, 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.” Of course insignificant harm, “petty slights or normal annoyances” would not be covered.

The Court also noted that the context of the actions must be considered. What could be “material” in one situation could be insignificant in another. For example, a schedule change might be unimportant to many people but to a single parent with small children it might be huge. The fact that the context must be considered requires that each case be decided on a case-by-case basis.

There is no “bright line” test. The degree to which this case will affect you depends upon where you live. Lower courts had adopted various standards. A lot of things remain unclear after this decision including the specific definition of “materially adverse.” What is clear though is that employers must be even more careful to avoid even the appearance of retaliation against an employee who may be involved in a discrimination case. A few things to consider include:

Given the rising number of retaliation claims and the fact that they are now regularly included with discrimination complaints it is more important than ever to take steps to avoid them. Otherwise you may end up winning a discrimination case but losing on the retaliation claims.

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