Burlington Northern Santa Fe Railway Co. v. White - Opinion Announcement

Argument of Speaker

Mr. Speaker: Justice Breyer has the opinion in 05-259, Burlington Northern and Santa Fe Railway versus White.

Argument of Justice Breyer

Mr. Breyer: Section 703 of the … of Title VII of the Civil Rights Act -- that’s the employment section -- forbids an employer from discriminating against an individual because of race, religion, gender or national origin with respect to “compensation, terms, conditions or privileges of employment”.

Then you go to the next section, which is 704, and the next section forbids an employer from discriminating against an individual because that individual has filed a charge or assisted in an investigation of or imposed -- opposed an employer’s discriminatory behavior.

In other words it forbids retaliation when you complain about a Title VII violation.

Now, in this case, we consider 704, the anti-retaliation provision, and what we do is, we are focusing on two matters that the lower courts have reached different conclusions about: the first, we ask, “Well, does that anti-retaliation provision limit the kind of retaliation it forbids; two, retaliation that affects terms and conditions of an individual’s employment; or does it contain no such limitation, does it go further?”; second, we ask, ”How harmful must the forbidden retaliation be in order to fall within the scope of the provision which prohibits it?”

Now, as to the first question, we find that the provision is not limited to retaliation; it affects the terms and conditions of an individual’s employment.

It goes farther.

It forbids retaliation that affects an individual outside of his job, say, serious harassment in his home, just is it forbids retaliation on the job, say, a demotion.

The language of the statute suggests this.

That’s why I read the text, because the text that I read that talks about limitations to employment is in the first part, the substantive provision, 703.

No language like that is present in the second part, so why limit it?

And moreover, common sense suggests the same thing.

After all, a threat to hurt a person who files a complaint at that individual’s home or to file a false criminal charge against a victim of discrimination could be just as effective at stopping her from filling the complaint as a threat to reduce her pay.

So limiting the anti-retaliation to employment-related acts would fail to fully achieve the provision’s purpose, which is to prevent employers from interfering with employees’ efforts to invoke Title VII’s protections.

As to the second question, we hold that the anti-retaliation provision protects an individual not from all conceivable retaliation, but from retaliation that produces a significant injury or harm.

Of course, you want to know what's meant by “significant”.

Well, we say what it means is, we adopt the standard that’s been used by the 7th Circuit and the District of Columbia Circuits.

They say and we say, to show that an injury or harm is significant, the plaintiff must show that a reasonable employee would have found the employer’s retaliatory action materially adverse, which in this context means that it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

We use the term “material” to separate out, because they are not actionable, trivial harms.

We refer to the reactions of a reasonable person, because we think the standard for judging harm must be objective, as it is in other Title VII context.

We phrase the standard in general terms, because the significance of any given retaliatory act will often depend upon particular circumstances; that is to say, context matters.

A worker’s schedule change may normally make little difference to a worker; but suppose that that worker is a young mother with children, then it could matter enormously.

A supervisor’s refusal to invite an employee to lunch is normally just a petty slight; but to retaliate by excluding an employee from a weekly training lunch might well dissuade a reasonable employee from coming forward with a discrimination complaint.

Finally, we apply the standard to the facts of this case.

The plaintiff, the only woman working as a railroad-track laborer in the railroad's Tennessee yard complained about sexual harassment.

Subsequently, she was subject to a change of duties.

Her duty was changed from forklift operator to ordinary track worker.

Then she made some more complaints, and after that she was charged with insubordination and suspended without pay for 37 days.

Eventually, the railroad found her innocent of insubordination and gave her back pay.

In our view, the jury could lawfully find in the circumstance that the reassignment of her job duties, and the 37-day suspension without pay, even though she later got back pay, they still could find that that constituted unlawful retaliation.

We explain all these matters more fully in our opinion.

The judgment of the United States Court of Appeals, which found in her favor, is affirmed.

Justice Alito has filed a separate opinion concurring in the judgment.