Employer Tips As EEOC Urges Return To Low Retaliation Bar

• Published date: 13 February 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Ms Denise Giraudo and Maryam Gueye

Almost 17 years have passed since the U.S. Supreme Court's landmark 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, which sought to clarify the anti-retaliation provision of Title VII of the Civil Rights Act.¹

Under Title VII's anti-retaliation provision, an employer is prohibited from discriminating against an employee or job applicant because that individual opposed a practice made unlawful by Title VII or because that individual made a charge, testified, assisted or participated in a Title VII proceeding or investigation.²

In Burlington Northern, the Supreme Court liberally interpreted this provision to prohibit "employer actions that would have been materially adverse to a reasonable employee or job applicant."³

The court specified that materially adverse actions were not limited to those that affect the terms and conditions of employment or occur at the workplace, but added that the actions must be harmful enough to "dissuade a reasonable worker from making or supporting a charge of discrimination."⁴

Nonetheless, years after the Burlington Northern decision, courts are still interpreting the retaliation standard in myriad ways.

In an attempt to achieve uniformity in lieu of the varying interpretations of the retaliation standard, this past year the U.S. Equal Employment Opportunity Commission has been pressuring courts to more closely adhere to the Burlington Northern standard of prohibiting any action that could dissuade a reasonable worker from making or supporting a charge of discrimination.

Still, despite this pressure from the EEOC, there remains no clear standard within the courts.

Current Unsettled Landscape

The ambiguous nature of the Burlington Northern decision has lead lower courts to variously interpret what may constitute a materially adverse employer action.

More serious examples of actions taken by employers that various courts have deemed retaliatory include denial of promotions, refusal to hire, denial of job benefits, demotion, suspension and discharge,⁵ work-related threats,⁶ warnings and reprimands,⁷ negative or lowered evaluations,⁸ and transfers to less prestigious or desirable work or work locations,⁹ among others.

However, with varying fact patterns, courts are left with great discretion to determine what types of conduct are materially adverse. Indeed, in similar fact patterns, the analysis under Burlington Northern resulted in two different results.

For example, in Geleta v. Gray,¹⁰ a U.S. Court of...