Title VII’s anti-retaliation provision states that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice …, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing ...” 42 U.S.C. § 2000e-3(a) (2006). Courts interpreting this provision have held that a case of retaliation requires proof of three elements: (1) protected conduct; (2) adverse action; and (3) a causal connection between the protected conduct and the adverse action.

In Burlington N. & Santa Fe Ry. Co. v. White (2006), the United States Supreme Court held that “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In setting this standard, the court noted that the purpose of the anti-retaliation provision is “to prevent employer interference with ‘unfettered access’ to Title VII’s remedial mechanisms ... by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, and their employers. [P]etty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Moreover, personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers are not actionable.

The Court also clarified that “the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”

The impact of the White decision is that it will likely be easier for a plaintiff to establish the “adverse action” element to prove a prima facie case of retaliation in a Title VII case. Consequently, after White, retaliation cases are more likely to survive summary judgment. While White has been universally adopted, some courts have distinguished situations in which the Supreme Court decision does not apply. However, none of those courts construed a meaning from White that was not clearly described in its original holding. Furthermore, all of the Circuits covering Connecticut, Delaware, Florida, Massachusetts, New Jersey, New York and Washington, D.C. have acknowledged that White alters the level of employment conduct that constitutes an adverse action in Title VII retaliation claims, inevitably making it easier for a plaintiff to get past summary judgment.

First Circuit

In Carmona-Rivera v. Puerto Rico, the employee filed suit against the Commonwealth of Puerto Rico, and others, alleging that the defendants retaliated against her by not accommodating her disability. In 2002, a resolution was adopted by the Puerto Rico Office of the Advocate for Persons with Disabilities, which required defendants to provide the plaintiff with a private bathroom, which was necessary for her disability. In 2004, the District Court approved a partial settlement agreement between the parties binding the school to build the plaintiff a private bathroom. In 2005, the District Court entered summary judgment on the retaliation claim in favor of the employer, and the plaintiff appealed. The First Circuit Court of Appeals affirmed, holding that the delay in the plaintiff receiving the bathroom did not constitute an adverse action. The court recognized that White applied in the First Circuit, and that “under the revised [White] standard, the delay may qualify as an adverse action.” However, the First Circuit Court of Appeals concluded that there was no evidence on record that a reasonable jury could use to conclude the delay resulted from retaliatory behavior.

Second Circuit

The Second Circuit Court of Appeals recognized that White lowers the burden of proof needed for a plaintiff to survive the summary judgment stage of a Title VII retaliation claim. In Kessler v. Westchester County Dep’t of Soc. Serv., the employee alleged he was retaliated against for filing an earlier discrimination complaint with the New York State Division of Human Rights and the United States Equal Opportunity Commission. The previous complaint alleged that the plaintiff was denied promotions and other privileges of employment that had been granted to “younger or non-Jewish or non-White or Female” counterparts. The employee stated that the defendants later retaliated against him by assigning him to a different office and reducing his job responsibilities. The District Court granted the defendants’ motion for summary judgment, and the plaintiff appealed. The Second Circuit Court of Appeals reversed, holding that the plaintiff adduced evidence sufficient to create a genuine issue of fact as to whether the changes in employment were materially adverse as to warrant a Title VII claim. The Kessler court made their decision “[i]n light of the Supreme Court’s recent decision in [White],” and applied White to determine that the evidence was “sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.”

Third Circuit

The Third Circuit Court of Appeals stated that White clarifies “what plaintiffs must show to make out retaliation claims under Title VII.” In Moore v. City of Philadelphia, several police officers brought suit under Title VII alleging that their supervisors violated their right to be free from retaliation for opposing racial discrimination in the workplace. The district court granted the defendants’ motion for summary judgment, and the plaintiffs appealed. The Third Circuit Court of Appeals reversed, holding that plaintiffs had produced enough evidence to create a genuine issue of fact as to whether the defendants had violated Title VII anti-retaliation provisions. The Moore Court acknowledged that White had changed the metric for evaluating Title VII retaliation claims: “Until recently, we required those claiming unlawful retaliation… to show an ‘adverse employment action.’” The Court stated that the burden of proof previously required had changed after White, and now a plaintiff claiming retaliation under Title VII “must show that a reasonable employee would have found the retaliatory actions ‘materially adverse’ in that they ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Eleventh Circuit

The Eleventh Circuit Court of Appeals has not yet issued a published opinion referencing White. However, the District Court in the Northern District of Georgia, Atlanta Division, recently acknowledged that White alters the “adverse action element” needed to establish a prima facie Title VII retaliation claim. In White v. Potter, the employee, a custodian at a United States Parcel Service Distribution Center, alleged that his employer retaliated against him for filing a sexual harassment and physical disability complaint. The Magistrate Judge’s final report issued a recommendation that the defendant’s motion for summary judgment be granted for the multiple retaliation claims. The Potter court addressed White in a detailed footnote, stating that after White it is “more appropriate to refer to the ‘adverse employment action’ element as the ‘materially adverse action’ element” since White “requires the employee to show that a reasonable employee would have found the challenged action materially adverse.”

D.C. Circuit

Like the Eleventh Circuit, the D.C. Court of Appeals has not yet issued any published opinions referencing White. However, the District Court of the D.C. Circuit recently acknowledged that White altered the “adverse action” element of a Title VII retaliation claim. In Rattigan v. Gonzales, the employee, an FBI attorney, filed a complaint alleging his supervisors retaliated against him for previously filing discrimination and hostile work environment claims. The Rattigan court granted in part and denied in part the defendant’s motion to dismiss, and denied the defendant’s motion for summary judgment. The court acknowledged that after White it is necessary that a reasonable employee would find an employer’s action “materially adverse” to satisfy the adverse action element of a retaliation claim. The Rattigan court also highlighted a growing split in the Circuits relating to whether an employment investigation can constitute an adverse employment action stating that since the “case has not yet proceeded to discovery, and given the unsettled state of the law after White, this Court will not dismiss plaintiff’s [retaliation claims] regarding monitoring and investigations.”

Bottom Line for Employers

Judging by the decisions issued in the year since White, it appears certain that more retaliation claims will go to trial. Therefore, it is recommended that all employers implement both a disciplinary and anti-discrimination/anti-retaliation policy. These policies should encourage employees to bring complaints; report actions believed to be retaliatory; provide alternate methods for complaints to be reported; contain an express prohibition against retaliation; and describe the consequences of violating the prohibition against retaliation. In addition, employers should consistently enforce these policies when faced with a situation that involves potential workplace discrimination. Any employer seeking to discipline an employee after the employee has complained of discrimination should be certain that all disciplinary actions taken are not retaliatory, are in accordance with internal policies and are consistent with the company’s past disciplinary policies practices. Moreover, employment actions, such as reassignments, shift changes and changes in an employee’s responsibilities following a claim for discrimination must be considered carefully and in keeping with the standard articulated in White.