Cooper Walinski, LPA

In a recent decision, Burlington N. & S. F. R. Co. v. White, the Supreme Court settled a split among the lower courts concerning what a plaintiff must show to recover under Title VII’s whistleblower provision.

Title VII of the Civil Rights Act of 1964 bars employer discrimination based on an employee’s race, color, religion, sex, or national origin. This statute also has a whistleblower provision, which protects an employee who reports Title VII discrimination.

Shelia White was hired by Burlington as a track laborer, and was assigned to operate a forklift. After complaining about a supervisor’s inappropriate comments, White was reassigned to general track laborer duties. White again complained, and was suspended without pay for an incident of alleged insubordination. Though White was later reinstated and given back pay, she filed charges with the EEOC based on Title VII’s whistleblower provision.

The employer argued that the Court should apply the same standard to the whistleblower provision which is applied to Title VII’s substantive provision. This standard “explicitly limits the scope of that provision to actions that affect employment or alter the conditions of the workplace.” Several courts, including those in Ohio, had applied this standard when considering Title VII whistleblower cases, requiring an employee to show that the action resulted “in an adverse effect on the terms, conditions, or benefits of employment.”

The Court settled on a lower standard. It held that in order to bring a claim under the whistleblower provision “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.” Additionally, the employee needs to demonstrate that this “materially adverse action” would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Applying the standard to White’s case, the Court found that the railroad had violated Title VII. While it noted that reassignment of job duties is not automatically a violation, it was in White’s case. The Court held that a reasonable employee would have found the reassignment “materially adverse.” The forklift job was cleaner, required more qualifications, and was generally seen as better by the other employees. Further, the fear of reassignment would serve to dissuade a reasonable worker from making or supporting a charge of discrimination. The fact that White was reinstated with back pay had no effect on the outcome of the case.

The new standard will make it easier for workers to file claims under the retaliation provision of Title VII, because they are not limited to actions that affect their employment. An employee will simply need to show that an action by an employer would 1) be seen as materially adverse by a reasonable employee, and 2) dissuade a reasonable employee from making or supporting a charge of discrimination. To guard against a retaliation charge, an employer should take care that no adverse action is taken against an employee who makes a claim under Title VII.

For complete details, see Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. __ (2006), available at http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf (June 28, 2006).

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