Jottings By An Employer's Lawyer

Thursday, June 22, 2006

Supreme Court Answers the Question: What Is An Adverse Employment Action?

Deciding the most awaited employment decision of the term, the Supreme Court today clarified one of the prima facie elements for a retaliation claim. The shorthand prima facie case has always been

  • protected activity,
  • adverse employment action, and
  • causal link between the two.

Justice Breyer's majority opinion answered the question-- what is an adverse employment action? -- by spending the first half eliminating "employment" from the element.

The only thing really surprising about that aspect is that the Court took half of the opinion to say it. Referrring to the D.C. Circuit opinion involving an FBI agent who claimed that he was not warned when the FBI learned about threats to his life from an inmate, the Court makes clear that retaliatory action is not limited to workplace activities, but is any action which meets the standard it adopted today.

And that standard is:

In our view, 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.' "
The Court basically adopts the standard currently used by the 7th and D.C. Circuits.

The Court made three important explanatory points:

  • It is important to distinguish "significant from trivial" harms;
  • It used the phrase "reasonable employee" to make clear that the standard is an objective, rather than subjective one; and
  • It defined the standard in general terms because the decision as to whether it is an adverse action must be decided in context.

Applying its new standard, the Court unaminously finds that both a 37 day unpaid suspension, even though later converted to paid, and assignment to a more physically arduous position were adverse actions and thus serve the basis for a retaliation action.

The decision was 8-1 to on the standard -- Justice Alito concurred only in the result.

Burlington Northern Railway v. White (S.Ct. 6/22/06) [pdf].

My first thoughts -- a not terribly unexpected result. It will be talked about as a pro-employee decision -- which it is -- but employers can take heart in the explanatory comments, particularly that the test is objective. Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the Court.

What it certainly means however is a period of time until the Courts, at least in 10 circuits, sort through their new standard.


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