Runaway Train-The Retaliation Scene After Burlington Northern v. White

• Author: Yvette K. Schultz
• Pages: 1025-1065

I would like to extend a special thanks to Professor William R. Corbett for his guidance throughout the drafting process.

Page 1025

I Introduction

Mr. Smith is the CEO of Alphabet Corporation. One day at the Utopia Country Club, Mr. Smith sees two of his employees who also happen to be members of the same club. Feeling confrontational, he approaches Stephanie, an employee of Alphabet Corporation, and punches her in the face for being a woman. He then finds John, another employee of Alphabet Corporation whom he knows complained to the company's grievance department about sexual harassment of women in the workplace, and punches him in the face because of his complaint.¹The former scenario is not within the scope of Title VII² as it is not work-related and thus does not alter Stephanie's "terms and conditions of employment."³ The latter scenario, however, could possibly be actionable under the United States Supreme Court's recent interpretation of the anti-retaliation provision of Title VII. Seems counterintuitive, doesn't it?

Under Title VII, employers are prohibited from retaliating against an employee who participates in Title VII processes or who opposes workplace discrimination protected under the statute.⁴ In order to make out a prima facie case of retaliation, the plaintiff must show that: (1) he or she engaged in protected activity; (2) he or she experienced some adverse employment action; (3) the employer knew about the employee's protected activity; and (4) a causal link existed between the protected activity and the adverse employment action.⁵

Over the years, the courts have struggled with how to define "adverse employment action." The courts eventually adopted three Page 1026 standards: (1) an "ultimate employment decision" such as "hiring, granting leave, discharging, promoting, and compensating,"⁶ (2) a "materially adverse change in the terms and conditions" of employment,⁷ and (3) materially adverse treatment that might well have "dissuaded a reasonable worker from making or supporting a charge of discrimination."⁸ The majority of courts, regardless of the standard adopted, agreed that the employer's adverse action needed to be employment-related to be actionable.

The Fifth Circuit Court of Appeals, in addition to Louisiana state courts, adopted the strictest standard of the three-the "ultimate employment action" standard.⁹ In 2006, the Supreme Court, in Burlington Northern & Santa Fe Railway v. White, decided that the appropriate standard for the adverse employment action prong is any materially adverse action that might well "have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'"¹⁰ In addition to adopting the most lenient standard of the three, the Supreme Court decided that the adverse treatment need not be employment-related at all. The Court also indicated that the "reasonableness" requirement has both subjective and objective elements.¹¹

The Court was reasonable in its interpretation of 704(a) of the Civil Rights Act of 1964; however, the statute is now too broad. Because the standard recognizes that retaliation can come in many forms and thus requires a case-by-case analysis, it will be virtually impossible for employers to gauge their behavior. It will be difficult to deter employers from retaliating if they have no indication as to what is and what is not considered prohibited behavior. Because even relatively minor actions by an employer could deter a victimized employee from complaining, summary judgment will virtually be eliminated and the costs of litigation Page 1027 will rise dramatically. Furthermore, the Burlington standard will likely be applied beyond the Title VII arena as courts tend to look to Title VII decisions for guidance on how to interpret anti- retaliation provisions in other contexts.¹² Finally, such an interpretation makes the anti-retaliation provision much broader than the underlying discrimination provision-the heart and soul of Title VII. Such a result provides more protection to bystanders who simply complain or oppose the Title VII protected behavior than those who actually experience discrimination based on "race, color, religion, sex, or national origin."¹³

Part II of this Note discusses the background of Title VII leading up to the 2006 decision in Burlington. Part III provides a brief summary of the relevant facts and reasoning surrounding the Burlington majority and concurring decisions. Part IV discusses the gradual broadening of Title VII retaliation, the reasonableness of the Court's interpretation of the anti-retaliation provision, and the ramifications of the Court's decision on the business world and on present day litigation. Part V contains suggestions on how to temper the broad interpretations adopted in the Burlington decision and other retaliation cases. Part VI concludes by recommending that Congress amend 704 of the Civil Rights Act of 1964 to clarify what type of "discrimination" is within the scope of the provision.

II The Retaliation Scene Prior To Burlington

Title VII's main provision prohibits an employer from discriminating against an employee because of the employee's "race, color, religion, sex, or national origin."¹⁴ However, Title Page 1028 VII also prohibits employers from retaliating against employees that have opposed discriminatory behavior protected under the main provision.¹⁵ Any claim in retaliation begins with alleged conduct that is protected under the main provision- 703(a).¹⁶Next, an employee decides to protest the discrimination in some way-either formally or informally.¹⁷ After an "employee has 'opposed' unlawful discrimination in the workplace or has 'participated' in any process or investigation directed against such discrimination," Title VII prohibits an employer from retaliating against that employee.¹⁸ Therefore, the anti-retaliation provision ( 704(a)) ensures that an employee's rights under the main provision of Title VII are fully protected.¹⁹

A Proving Discriminatory Intent

In order to prevail on a claim of retaliation, an employee must prove discriminatory intent on the part of the employer. The plaintiff can establish this intent by direct or circumstantial evidence.²⁰ In cases involving direct evidence, the plaintiff must simply establish a prima facie case of retaliation. In order to Page 1029 establish a prima facie case of retaliation, the plaintiff must show: "(1) a statutorily protected conduct; (2) an adverse employment action; and (3) the adverse action was causally related to the protected conduct."²¹ Further, all circuits require the plaintiff to prove that the employer knew of the employee's protected activity; however, some circuits explicitly list this as a fourth element to the prima facie case.²² Very rarely is direct evidence of discriminatory intent available. As a result, courts have adopted the burden- shifting approach created by the Supreme Court in McDonnell Douglas Corp. v. Green²³ to assist in weighing circumstantial evidence of intent.²⁴

First, the plaintiff must make a showing of a prima facie case of retaliation. If the plaintiff's showing is sufficient, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action taken against the plaintiff. If the defendant articulates such a reason, the burden shifts back to the plaintiff to prove that the stated reason for the adverse action is actually a pretext for retaliation.²⁵

Thus the establishment of a prima facie case of retaliation results in a presumption of discriminatory intent, which the employer is able to rebut if the employer succeeds in providing a legitimate, non-retaliatory reason for its action.²⁶ Page 1030

B Dispute In The Circuits Over The Proper "Adverse Employment Action" Standard

Over the past four decades, the federal circuits have struggled with interpretation of the anti-retaliation provision. Even though "the anti-retaliation clause on its face contains no requirement that the discrimination be with respect to terms, conditions, or privileges of employment," most circuits have interpreted 704 to require an adverse employment action.²⁷ However, the circuits varied greatly as to what was considered severe enough to constitute an adverse employment action. Unfortunately, the legislative history of Title VII provides little guidance other than the idea that "[management] prerogatives . . . are to be left undisturbed to the greatest extent possible."²⁸ Because of the unclear statutory language and the negligible legislative history surrounding the scope of Title VII's anti-retaliation provision, the federal circuits adopted three different interpretations of adverse employment...