Burlington Northern & Santa Fe Railway Co. v. White

Infobox SCOTUS case
Litigants=Burlington Northern & Santa Fe Railway Co. v. White
ArgueDate=April 17
ArgueYear=2006
DecideDate=June 22
DecideYear=2006
FullName=Burlington Northern and Santa Fe Railway Company, Petitioner v. Sheila White
USVol=548
USPage=53
Citation=126 S. Ct. 2405; 2006 WL 1698953
Docket=05-259
Prior=On writ on certiorari to the United States Court of Appeals for the Sixth Circuit; White v. Burlington Northern & Santa Fe Railroad Co, 364 F.3d 789 (6th Cir. 2004).
Subsequent=
Holding=The anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.
SCOTUS=2006
Majority=Breyer
JoinMajority=Roberts, Stevens, Scalia, Kennedy, Souter, Ginsburg, Thomas
Concurrence=Alito
LawsApplied=Title VII of the Civil Rights Act of 1964; 42 U. S. C. §2000e-2(a);

"Burlington Northern & Santa Fe (BNSF) Railway Co. v. White", 548 U.S. 53 (2006) was a United States Supreme Court case about sexual harassment and retaliatory discrimination.

Facts

In June 1997, Sheila White was the only woman working in the Maintenance of Way department at BNSF’s Tennessee Yard. Marvin Brown, interviewed White and expressed interest in her previous experience operating forklifts. Burlington hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White’s primary responsibility.

In September 1997, White complained to BNSF officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session.

On September 26, Brown told White about Joiner’s discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker’s complaints that, in fairness, a “‘more senior man’” should have the “less arduous and cleaner job” of forklift operator.

On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commission). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. (She had also challenged her employer's actions through a trade union grievance process.) In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activities. That charge was mailed to Brown on December 8.

A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her back pay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

Procedural history

After exhausting administrative remedies, White filed suit in federal court, where a jury rejected her claims of sex discrimination but awarded her damages of $43,000 after finding that she had been retaliated against in violation of Title VII of the Civil Rights Act of 1964. On appeal, Burlington Northern argued that White had not suffered "adverse employment action," and therefore could not bring the suit, because she had not been fired, demoted, denied a promotion, or denied wages. The Sixth Circuit Court of Appeals initially agreed. [310 F. 3d 443 (2002)] The case was reheard "en banc", however, and the full court found for White, holding that the suspension without pay - even if back pay was eventually awarded - was an "adverse employment action," as was the change of responsibilities within the same job category. The judges differed as to the standard they should apply in assessing such claims. [364 F. 3d, at 795–800, with id., at 809 (Clay, J., concurring)]

Some Circuits have insisted upon a close relationship between the retaliatory action and employment. ["See, e.g., Von Gunten v. Maryland", 243 F. 3d 858, 866 (4th Cir. 2001); "Robinson v. Pittsburgh", 120 F. 3d 1286, 1300 (3d Cir. 1997).] Others have adopted a more restrictive approach. ["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, 692 (8th Cir. 1997).] The Supreme Court granted "certiorari" to resolve the circuit split.

Statute at issue

Title VII’s anti-retaliation provision forbids employer actions that “discriminate against” an employee (or job applicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” UnitedStatesCode|42|2000e–3(a).

Conflict among the Circuits

No one doubts that the term “discriminate against” refers to distinctions or differences in treatment that injure protected individuals. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005); Price Waterhouse v. Hopkins, 490 U. S. 228, 244 (1989)(plurality opinion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. 364 F. 3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must “resul [t] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Von Gunten v. Maryland, 243 F. 3d 858, 866 (CA4 2001); see Robinson v. Pittsburgh, 120 F. 3d 1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an “ultimate employment decisio [n] ” standard, which limits actionable retaliatory conduct to acts “‘such as hiring, granting leave, discharging, promoting, and compensating.’” Mattern v. Eastman Kodak Co., 104 F. 3d 702, 707 (CA5 1997); see Manning v. Metropolitan Life Ins. Co., 127 F. 3d 686, 692 (CA8 1997).

Other Circuits have not so limited the scope of the provision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee,” which in contexts like the present one means that it would likely have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue, 420 F. 3d 658, 662 (CA7 2005); see Rochon v. Gonzales, 438 F. 3d 1211, 1217–1218 (CADC 2006). And the Ninth Circuit, following EEOC guidance, has said that the plaintiff must simply establish “‘adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’” Ray v. Henderson, 217 F. 3d 1234, 1242– 1243 (CA9 2000).

Issue

The Supreme Court granted certiorari to resolve this disagreement. To do so required the Court to decide: whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. The Court also agreed to characterize how harmful an act of retaliatory discrimination must be to fall within the provision’s scope.

Petitioner's argument

Burlington Northern (the Petitioner) and the Solicitor General both argued that the Sixth Circuit is correct to require a link between the challenged retaliatory action and the terms, conditions, or status of employment. They note that Title VII’s substantive anti-discrimination provision protects an individual only from employment-related discrimination. They claim that the anti-retaliation provision should be read "in pari materia" with the anti-discrimination provision. And they conclude that the employer actions prohibited by the anti-retaliation provision should similarly be limited to conduct that “affects the employee’s ‘compensation, terms, conditions, or privileges of employment.’”

The petitioner and United States Solicitor General also claimed that it is “anomalous” to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based, or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14–15.

Outcome

The Supreme Court ruled in favor of Sheila White. It affirmed the decision of the Sixth Circuit, but for different reasons than those used by the lower court. Justice Breyer wrote for the majority.

Reasoning

Retaliation does not have to be an adverse employment action to be unlawful

The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII’s core anti-discrimination provision in the following terms:

“It shall be an unlawful employment practice for an employer—

“(1) to 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, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way "which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee," because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a) (emphasis added).

Section 704(a) sets forth Title VII’s anti-retaliation provision in the following terms:

“It shall be an unlawful employment practice for an employer "to discriminate against" any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made acharge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” §2000e–3(a) (emphasis added).

The underscored words in the substantive provision—“hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,”and “status as an employee”—explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read "in pari materia" to mean the same thing. Rather, the question is whether Congress intended its different words to make a legal difference. The Supreme Court normally presumes that, where words differ as they differ here, “‘Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” "Russello v. United States", 464 U.S. 16, 23 (1983).

There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See "McDonnell Douglas Corp. v. Green", 411 U.S. 792, 800–801 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.

To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” id., at 800, would be achieved were all employment-related discrimination miraculously eliminated.

But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., Rochon v. Gonzales, 438 F. 3d, at 1213 (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “ [m] aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997).

Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. ___ (2006) (slip op., at 14) (rejecting statutory construction that would “trea [t] venue and subject-matter jurisdiction prescriptions as "in pari materia"” because doing so would “overloo [k] the discrete offices of those concepts”).

Congress has provided similar kinds of protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the primary substantive provisions. The National Labor Relations Act, to which the Supreme Court has “drawn analogies . . . in other Title VII contexts,” "Hishon v. King & Spalding", 467 U. S. 69, 76, n. 8 (1984), provides an illustrative example. Compare UnitedStatesCode|29|158(a)(3) (substantive provision prohibiting employer “discrimination in regard to . . . any term or condition of employment to encourage or discourage membership in any labor organization”) with §158(a)(4) (retaliation provision making it unlawful for an employer to “discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter”); see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 740 (1983) (construing anti-retaliation provision to “prohibi [t] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities,” including the retaliatory filing of a lawsuit against an employee); "NLRB v. Scrivener", 405 U.S. 117, 121–122 (1972) (purpose of the anti-retaliation provision is to ensure that employees are “‘completely free from coercion against reporting’” unlawful practices).

In any event, differences in the purpose of the two provisions remove any perceived “anomaly,” for they justify this difference of interpretation. Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.

For these reasons, the Court concluded that Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. The Court therefore rejected the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called “ultimate employment decisions.”

Retaliation must be materially adverse to a reasonable employee

The Courts of Appeals had used differing language to describe the level of seriousness to which retaliatory harm must rise before it becomes actionable retaliation. The Supreme Court agreed with the formulation set forth by the Seventh and the District of Columbia Circuits. 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.’” Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662).

The Court spoke of material adversity because it believed it was important to separate significant from trivial harms. Title VII does not set forth “a general civility code for the American workplace.” "Oncale v. Sundowner Offshore Services, Inc.", 523 U. S. 75, 80 (1998); see Faragher, 524 U. S., at 788 (judicial standards for sexual harassment must “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing’”). 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. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that “courts have held that personality conflicts at work that generate antipathy” and “‘snubbing’ by supervisors and co-workers” are not actionable under §704(a)). The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. Robinson, 519 U. S., at 346. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. Ibid. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual §8, p. 8–13.

The Court referred to the reactions of a reasonable employee because it believed that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.

The Court made the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, supra, at 81–82. 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. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. See 2 EEOC 1998 Manual §8, p. 8–14. Hence, a legal standardthat speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra, at 661.

The majority noted that contrary to the claim of the concurrence, this standard does not require a reviewing court or jury to consider “the nature of the discrimination that led to the filing of the charge.” Post, at 6 (ALITO, J., concurring in judgment). Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, the Court believed this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.

Concurrence

Justice Alito concurred in the judgment, but disagreed with the majority’s interpretation of the antiretaliation provision of Title VII, writing that " [t] he practical consequences of the test that the majority adopts strongly suggest that this test is not what Congress intended."

See all

* List of United States Supreme Court cases, volume 548

References

External links

* [http://www.law.cornell.edu/supct/html/05-259.ZS.html decision available from Cornell Law School]
* [http://www.lawmemo.com/docs/us/white/ Text of the decision from Law Memo]
* [http://www.law.cornell.edu/supct/cert/05-259.html decision organized by Lii]