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

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

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 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 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 ret...

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