The Broad Array Of Conduct That May Qualify As Retaliation Under Section 704 Of Title VII

In Burlington Northern v. White (US Supreme Court 06/22/2006) the U.S. Supreme Court made clear that the type of conduct that can constitute unlawful retaliation under Title VII is much broader than many defense attorneys have argued. The basic rule, as articulated by the Court, is as follows:

"We conclude that the anti-retaliation provision [Section 704] does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that 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."

The retaliatory conduct need not even be directly related to the complaining party's employment. For example, filing false criminal charges against an employee can be a violation of Section 704. Berry v. Stevinson Chevrolet, 74 F. 3d 980 (10th Cir 1996)

In order to "separate significant from trivial harms," the Court requires the employee to show that the employer's action was "materially adverse." This will exclude "petty slights or minor annoyances." The Court adopted an objective standard, so an individual employee's "unusual subjective feelings" will not be relevant. The focus is on the materiality of the employer's action and "the perspective of a reasonable person in the plaintiff's position." Examples of materially adverse actions include: (a) changing an employee's job responsibilities to work that is less prestigious or perceived by the employee (or by other employees) as worse; (b) changing an employee's schedule; and (c) excluding an employee from activities that are available to other employees.

Marc A. Rapaport, Esq.
2007, All Rights Reserved