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The Supreme Court ruled unanimously Thursday to give broad protection under Title VII of the Civil Rights Act to employees who suffer retaliation for complaining about workplace discrimination. The decision in Burlington Northern & Santa Fe Railway Co. v. White ends disarray among lower courts on the standard required to assess retaliation claims, but employment lawyers say it will trigger a wave of new litigation to determine what kind of employer actions constitute illegal retaliation. “This decision is huge-hugely bad for me as a defense lawyer,” says Daniel Westman, a partner at Morrison & Foerster and the author of a book on retaliation litigation. “It really makes it a lot easier for employees to make out a case.” Civil rights groups, for their part, applauded the decision. “The Burlington Northern opinion is an emphatic statement that employees should be able to raise a good-faith complaint of discrimination without fear of retaliation from their employers,” says Gillian Thomas, lawyer for the women’s rights group Legal Momentum. Justice Stephen Breyer, writing for the Court, said the law protects employees from not just workplace retaliation such as a demotion, but any action by an employer that is “materially adverse,” meaning that it would dissuade a “reasonable worker” from making a charge of discrimination. “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses,” wrote Breyer. “Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the act’s primary objective depends.” The ruling, with its strong pro-employee tilt, drew no dissents from conservative justices, though Justice Samuel Alito Jr. wrote a separate concurrence to express concern about Breyer’s “new and unclear” standard. Alito said he joined the judgment nonetheless because the retaliation that gave rise to the case before the Court met an even more restrictive standard. The ruling is a victory for Sheila White, a forklift operator and the only woman working in the maintenance of way department at the railroad’s Tennessee yards. After complaining that she was the target of inappropriate remarks and that she had been told women should not be working in the department, White was reassigned as a track laborer, a less-skilled job. In the wake of another dispute, she was also suspended for insubordination. She complained to the Equal Employment Opportunity Commission, and the en banc U.S. Court of Appeals for the 6th Circuit ruled in her favor while dividing over the standard to be used. The 5th and 8th circuits have said only “ultimate” employment decisions such as firing or demotions are actionable forms of retaliation. But the 7th, 9th, and D.C. circuits have adopted far broader standards, which Breyer endorsed. Breyer said the law does not protect against “petty slights, minor annoyances, and simple lack of good manners,” but he added that “context matters.” For example, he said changing an employee’s work schedule might not constitute retaliation for some but would “matter enormously” to a young mother with school-age children. Similarly, if an employer fails to invite an employee to lunch, that would not be retaliation, Breyer said, but failure to invite a worker to a series of training lunches could have the effect of deterring employee complaints and would be actionable. “It’s an undefined standard that will create a lot of litigation,” says Allan Weitzman of Proskauer Rose, an employment law specialist. “None of our clients endorse retaliation, but we are talking about a situation that is fraught with human nature. If someone tells you that one of your employees has complained about you to the EEOC, you would be unhuman not to take it badly. Employers will have to be trained on how to be unhuman.” Tony Mauro can be contacted at [email protected]

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