Retaliation in the wake of Burlington Northern: making the case for an updated standard for proving an adverse action in Massachusetts under Chapter 151B.

• Author: Shank, Jonathan R.

"Much is at stake in the retaliation claim. The fear of retaliation and an awareness of the profound social costs of claiming discrimination are the primary reasons why people stay silent in the face of perceived inequality. For discrimination law to provide meaningful protection, legal standards must protect persons who perceive discrimination and give voice to their concerns. This is a worthy goal for discrimination law to pursue, as giving voice to discrimination produces a myriad of benefits, both personal and societal. Vocalizing opposition to inequality opens the door to important societal and institutional change and enables challengers to begin a valuable dialogue within their communities. By fully protecting persons who confront discrimination, the law can provide greater space for contesting and possibly reshaping the social norms that facilitate discrimination in the first place." (1)

1. INTRODUCTION

   Juliana McCormick was the lone female carpenter on a major construction project in Boston that connected two of the city's major subway lines. (2) While working on the project, McCormick's co-workers sexually harassed her. (3) When she complained of the harassment to her supervisor, the male employees retaliated against her. (4) Her supervisor assigned McCormick projects where she was forced to work in isolation and to do physically demanding work against her doctor's orders. (5) The initial discrimination and subsequent retaliation wore on her. (6) She was unable to sleep, cried constantly, noticed substantial changes in her moods, and, in her words, just "shut down." (7)

   Fortunately, the law provides protection for employees who suffer abuse similar to McCormick's. (8) Indeed, the law protected McCormick, because the actions taken against her occurred in the workplace and directly affected her employment. (9) Massachusetts, however, needs to address its retaliation standard to ensure that all those who confront illegal discrimination and are unlawfully retaliated against for doing so, are provided the same level of protection as McCormick. (10)

   Various Massachusetts and federal statutes protect employees from workplace retaliation by their employers. (11) Title VII of the Civil Rights Act of 1964 (Title VII) (12) and chapter 151B of the Massachusetts General Laws (Chapter 151B) (13) permit an aggrieved employee who has suffered an adverse action because of his legally protected conduct to assert a retaliation claim against his employer. (14) The public policy goals of anti-retaliation statutes are to ensure that workplaces are free of discrimination and to protect employees from retribution should they challenge such illegal conduct. (15) Generally, under both federal and state law, to establish a prima facie case of retaliation, a plaintiff must prove that he engaged in protected activity (under the opposition or participation clauses of the respective provisions), suffered an adverse action, and the adverse action occurred because of his protected activity. (16) Of these three elements, the second has undergone the most scrutiny because courts have defined the adverse action requirement differently throughout the years. (17)

   Title VII, a direct response to the Civil Rights movement of the 1960s, was enacted to rid the workplace of discrimination on the basis of race. (18) In Section 703(a), the anti-discrimination provision of Title VII, Congress extended the statute's protection beyond race and prohibited employment discrimination based on sex, color, religion, or national origin. (19) Section 704(a), the anti-retaliation provision, prohibits an employer from retaliating against an employee who has engaged in protected activity. (20) The anti-retaliation provision exists to further the goals of the anti-discrimination provision by ensuring that employees are provided redress to confront the evils of illegal discrimination. (21) Similarly, Massachusetts enacted its anti-retaliation provision so employees who engage in protected activity to challenge illegal discrimination are sheltered from unlawful retaliation. (22)

   When the United States Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. White, (23) it resolved a split among the circuit courts over what constituted an adverse action in the scope of a Title VII retaliation claim. (24) The Court addressed two questions: whether Title VII's anti-retaliation provision is limited to employer actions that are related to employment, or occur in the workplace, and how serious the harm must be to be actionable under the anti-retaliation provision. (25) In the first part of its holding, the Court held that section 704(a) covered harm suffered outside the workplace and was not limited to conduct that affected an employee's "compensation, terms, conditions or privileges of employment." (26) The Court answered the second question by requiring that the conduct rise to the level of being "materially adverse to a reasonable employee or job applicant." (27) The Court further defined this standard by stating 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." (28) Plaintiffs' lawyers hailed the decision as a victory for employees because the Court adopted a more lenient standard than many anticipated. (29) Many lawyers predicted that the number of retaliation claims brought under Title VII and other similar statutes would increase as a result of the decision. (30)

   This Note analyzes workplace retaliation in Massachusetts after Burlington Northern, highlighting the need for Massachusetts to adopt an updated standard for proving an adverse action under Chapter 151B. (31) Part II.A explores Title VII and the circuit split concerning what constituted an adverse action prior to Burlington Northern. (32) Part II.B investigates the Burlington Northern decision, the two components of the Court's holding, and analyzes its rationale for adopting a broad definition of an adverse action. (33) Part II.C discusses Chapter 151B and analyzes the current standard for proving an adverse action in Massachusetts. (34) Part III focuses on each part of the Supreme Court's holding in Burlington Northern and analyzes whether Massachusetts residents receive the same level of protection under the state's current retaliation jurisprudence. (35) This Note concludes that they do not and that Massachusetts needs to update its adverse action standard to ensure that all employees who confront illegal discrimination are protected from unlawful retaliation. (36)

2. HISTORY

   1. Federal Law Prior to Burlington Northern

      1. Title VII of the Civil Rights Act of 1964

         Title VII prohibits employers from discriminating against employees because of their race, color, sex, religion, or national origin. (37) Section 703(a), the core anti-discrimination provision, makes it unlawful for an employer "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." (38) The statute seeks to deter discriminatory conduct, but Congress was also concerned that employers might overstep their authority and create a culture of fear among employees who presented discrimination claims. (39) To protect against such abuse, Congress included section 704(a), the anti-retaliation provision, which prohibits employers from discriminating against employees who have engaged in protected activity. (40)

         To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that (1) he engaged in protected activity, (2) he suffered an adverse action, and (3) there was a causal connection between the protected act and the employer's adverse action. (41) The first prong of the plaintiff's prima facie case protects two types of activity: opposition to discrimination and participation in Title VII proceedings. (42) The opposition clause protects a wide range of activity, including utilization of an employer's internal grievance procedure and reporting alleged unlawful discrimination to supervisors, managers, and outside entities. (43) To be protected under the participation clause, an employee must have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing...." (44)

         To prove the third prong of a prima facie case of retaliation, plaintiffs use direct evidence of retaliatory intent or circumstantial evidence of disparate treatment. (45) If the plaintiff relies on circumstantial evidence, the burden-shifting framework established in McDonnell Douglas Corp. v. Green (46) for cases brought under the core anti-discrimination provision applies. (47) Under McDonnell Douglas, once a plaintiff establishes his prima facie case, the burden shifts to the employer to demonstrate a nondiscriminatory, legitimate reason for its adverse action. (48) If the employer meets its burden, it shifts back to the plaintiff to establish that the employer's proffered reason was merely a pretext for proscribed retaliation. (49)

      2. Pre-Burlington Northern Circuit Split

         Prior to the Supreme Court's decision in Burlington Northern, the federal circuit courts of appeals had different interpretations of the adverse action element of the prima facie case for retaliation under Title VII. (50) The courts disagreed whether conduct must be employment or workplace related to constitute an adverse action, and differed about the level to which an adverse action must rise to be actionable. (51) The Fifth and Eighth Circuits adopted the most restrictive standard, requiring an ultimate employment action--a firing, refusal to hire, refusal to grant leave, failure to promote, or change in employee compensation--to find an adverse action. (52) On the opposite end of the...