Proving Retaliation After Burlinigton v. White

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LEGRAND.DOC SEPTEMBER 30, 2008 12:13 PM PROVING RETALIATION AFTER BURLINGTON v. WHITE INTRODUCTION Title VII of the Civil Rights Act of 1964 seeks to eradicate employment discrimination by making two categories of employer conduct unlawful: discrimination based on an individual’s race, color, religion, sex, or national origin, and discrimination based on an individual’s efforts to enforce the Act’s basic guarantees.1 Because enforcement of the Act depends on employees reporting illegal practi
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  L E G RAND . DOC S EPTEMBER 30,   2008   12:13   PM 1221   PROVING RETALIATION AFTER  BURLINGTON v. WHITE   I NTRODUCTION  Title VII of the Civil Rights Act of 1964 seeks to eradicate employmentdiscrimination by making two categories of employer conduct unlawful:discrimination based on an individual’s race, color, religion, sex, or nationalsrcin, and discrimination based on an individual’s efforts to enforce the Act’sbasic guarantees. 1 Because enforcement of the Act depends on employeesreporting illegal practices, the protection of discrimination claimants iscrucial. 2 Until recently, however, the level of protection varied across thenation, as the circuits were split over what types of retaliatory conduct violatedTitle VII. Some circuits applied the same standard to retaliation claims as tounderlying discrimination claims; 3 some circuits limited actionable retaliatoryconduct to “ultimate employment decision[s];” 4 and some held that employerconduct was actionable if it would have dissuaded a reasonable employee frommaking a discrimination claim. 5 The need for a uniform standard increased,and retaliation claims became more frequent after enactment of the CivilRights Act of 1991, which allowed plaintiffs suing under Title VII to seek compensatory and punitive damages. 6 Of the 75,428 discrimination chargesfiled with the Equal Employment Opportunity Commission (EEOC) in 2005,25.8% were Title VII retaliation charges, 7 up from 14.5% in 1992. 8   1 . See 42 U.S.C. §§ 2000e-2(a), 3(a) (2000); Burlington N. & Santa Fe Ry. Co. v. White(  Burlington ), ____ U.S. ____ , 126 S. Ct. 2405, 2412 (2006).2 . See Burlington , 126 S. Ct. at 2414 (“[The] purpose of the anti-retaliation provision is toensure that employees are ‘completely free from coercion against reporting unlawful practices.”)(citing NLRB v. Scrivener, 405 U.S. 117, 121–22 (1972)) (internal quotations omitted).3 . E.g. , Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001).4 . E.g. , Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997).5 . E.g. , Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).6 . See 42 U.S.C. § 1981(a) (1991); P ATRICIA A.   W ISE ,   U NDERSTANDING AND P REVENTING W ORKPLACE R ETALIATION 1,   4   (2000)   (attributing the increase in retaliation claims to the factthat they “generally are easier to prove and result in larger damage awards than otherdiscrimination claims”).7. EEOC, C HARGE S TATISTICS :   FY   1997   T HROUGH FY   2006, available at   http://www.eeoc.gov/stats/charges.html.8. EEOC, C HARGE S TATISTICS :   FY   1992   T HROUGH FY   1996, available at  http://www.eeoc.gov/stats/charges-a.html.  L E G RAND . DOC S EPTEMBER 30,   2008   12:13   PM 1222 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 52:1221 In June of 2006, the Supreme Court resolved the circuit split in  Burlington Northern & Santa Fe Railway Co. v. White   and interpreted the statute broadly,holding that the anti-retaliation provision of Title VII forbids any employeraction that would dissuade a reasonable employee from making adiscrimination claim, including actions unrelated to employment or theworkplace. 9 In  Burlington , railroad employee Sheila White claimed that shewas transferred from forklift operation to hard track labor and later suspendedwithout pay in retaliation for filing a sexual discrimination claim against hersupervisor. 10 “[T]he date that they took me off that forklift and put me in theyard to work with the mens [sic], I didn’t know the first thing about it. Andeverything out there is hot and heavy. You could easily get killed or hurt outthere[,]” White said. 11 And referring to her suspension, “[t]hat thirty-sevendays were the worst days I want to think of. Two children in school, and I wasthe supporter, and no income coming in.” 12 These details are important;consideration of White’s particular circumstances is necessary to determinewhether her employer’s retaliatory conduct is actionable, according to theSupreme Court. 13 Writing for the majority, Justice Stephen Breyer stated thatthe significance of the employer’s action depends on “the perspective of areasonable person in the plaintiff’s position.” 14   In a separate concurrence, Justice Samuel Alito agreed with the majority inthe outcome of the case, that Burlington’s actions were unlawful retaliation,but disagreed with the majority’s analysis and test for retaliation. 15 JusticeAlito would limit the scope of unlawful retaliation to adverse employment-related actions, 16 an interpretation more clearly supported by the statutorylanguage than the majority’s standard. Justice Alito argued that the anti-retaliation provision of Title VII should be interpreted consistently with theanti-discrimination provision, which is limited to preventing discriminationwith respect to employment. 17 Furthermore, Justice Alito believed that themajority’s standard of a reasonable person in the plaintiff’s position will bedifficult for courts to apply because it requires consideration of employees’individual characteristics, but does not specify which characteristics courts 9. Burlington, ___ U.S. ___, 126 S. Ct. 2405, 2409 (2006).10 . Id  . at 2409–10.11. Shaila Dewan, Forklift Driver’s Stand Leads to Broad Rule Protecting Workers WhoFear Retaliation ,   N.Y.   T IMES ,   June 24, 2006, at A1.12 . Morning Edition:   Supreme Court Sides with Worker in Retaliation Suit  (NPR radiobroadcast June 23, 2006), available at  http://www.npr.org/templates/story/story.php?storyId=5505828.13 . Burlington , 126 S. Ct. at 2415.14 . Id  . at 2416.15 . Id. at 2422 (Alito, J., concurring).16 . Id  .17 . Id. at 2419–21.  L E G RAND . DOC S EPTEMBER 30,   2008   12:13   PM 2008] PROVING RETALIATION AFTER BURLINGTON v. WHITE 1223 must consider. 18 Justice Alito would instead apply the standard used by theSixth Circuit below, which found that White’s reassignment and suspensionwere materially adverse employment actions and thus prohibited under TitleVII. 19  This Note argues that the majority’s test for retaliation will in fact proveunworkable, as Justice Alito suggested, and that the Sixth Circuit’s standard isa more equitable and reasonable interpretation of Title VII and the anti-retaliation provision. Part II provides an overview of Title VII and its mainprovisions, with discussion of the elements necessary to establishdiscrimination and retaliation claims. That section also describes the circuitsplit and the competing retaliation standards. Part III describes  Burlington Northern v. White in detail, discussing the facts of the case, the two SixthCircuit decisions, the Supreme Court’s ultimate holdings in the case, andJustice Alito’s concurrence. Part IV provides an analysis of the majority’sstandard for retaliation and suggests that Justice Alito’s interpretation of retaliation under Title VII is more consistent with the language and purpose of the statute. That section also discusses the difficulties courts are likely to havein applying the majority’s standard and the practical problems the newstandard will cause employers and, eventually, employees. Part V concludesthat the standard for retaliation under Title VII should be the same objectivestandard used in discrimination cases, that this standard strikes the appropriatebalance between the rights of employers and employees, and that this standardwill be effective in securing individual civil rights under Title VII.I.   T ITLE VII AND THE C IRCUIT S PLIT    A. Overview of Title VII  The Civil Rights Act of 1964 was enacted primarily to eliminatediscrimination in public accommodations, public education, and employment,at a time when racial discrimination was the “[m]ost glaring.” 20 Congress didnot intend for the Act to breed litigation, but instead sought to encouragevoluntary resolution of all but the most serious types of discrimination. 21  Accordingly, Title VII’s primary purpose “is not to provide redress but toavoid harm” 22 through a system of formal and informal remedial proceduresimplemented by the EEOC. 23 For example, the EEOC encourages employers 18 . Burlington , 126 S. Ct. at 2421.19 . Id  . at 2422.20 . See H.R.   R EP .   N O . 88-914 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393–94; CivilRights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 241–68 (1964).21. H.R.   R EP .   N O . 88-914.22. Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998).23. H.R.   R EP .   N O . 88-914, reprinted in 1964 U.S.C.C.A.N. at 2401.  L E G RAND . DOC S EPTEMBER 30,   2008   12:13   PM 1224 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 52:1221 to establish an internal complaint procedure for discrimination complaintswhich, if effective, can limit employer liability. 24 The Supreme Court hasaffirmed this preventative approach as consistent with Title VII’s purpose,stating that employers deserve credit for making “reasonable efforts todischarge their duty” to prevent and remedy discriminatory conduct. 25  Victims of discrimination must first file a complaint with the EEOC, whichinvestigates claims and has the power to enjoin the employer from unlawfulpractices. 26 If the EEOC does not take action on a complaint within a certainperiod of time, the complaining party can bring a civil action against theemployer. 27   Title VII defines unlawful employment discrimination in two sections.Section 703(a) of the Act makes it unlawful for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise todiscriminate against any individual with respect to his compensation, terms,conditions, or privileges of employment, because of such individual’s race,color, religion, sex, or national srcin; or(2) to limit, segregate, or classify his employees or applicants for employmentin any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as anemployee, because of such individual’s race, color, religion, sex, or nationalsrcin. 28  The Supreme Court in  Burlington referred to this section as Title VII’s“substantive anti-discrimination provision.” 29 This provision prohibits“disparate treatment” of a protected class and also conduct that may be faciallyneutral but has a “disparate impact” on protected individuals equivalent tointentional discrimination. 30 To recover under a disparate treatment theory, theplaintiff must establish a discriminatory motive underlying the employer’saction; disparate impact claims, however, do not require proof of adiscriminatory motive. 31  For a plaintiff to recover for disparate treatment, the challenged employerconduct must be either a tangible employment action resulting in a significantchange in employment status or benefits, 32 or must be harassment so severe 24 . See,   e.g. ,  EEOC Policy Guidance on Sexual Harassment  , No. N-915-050 (Mar. 19,1990), available at  http://www.eeoc.gov/policy/docs/currentissues.html.25 . Faragher  , 524 U.S. at 806.26 . See 42 U.S.C. § 2000e-5 (2000).27 . Id  .28 . Id. § 2000e-2(a).29. Burlington, ____ U.S. ____ , 126 S. Ct. 2405, 2411 (2006).30 . See, e.g. , Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986–87 (1988).31 . Id  . at 986.32. Burlington Indus., Inc. v. Ellerth (  Ellerth ), 524 U.S. 742, 761 (1998).
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