We know more about what an “adverse action” consists of now, in Retaliation cases, due to the US Supreme Court’s decision in Burlington Northern v. White (2006)

Here’s a link to the case of Burlington Northern v. White.

For more background about this “adverse action” stuff, see my article called Adverse Employment Action. In effect, you don’t have any case at all unless you have a qualifying “adverse action”. But many types of bad things occur, not just terminations - so the law has been unclear about what things are “bad enough” to be adverse. The Supreme Court has now clarified the law of Adverse Action.

Here is the Court’s standard for determining whether an act (or acts) of retaliation might be bad enough to be actionable: “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

Here’s a link to the case of Burlington Northern v. White.

Here’s a nutshell summary of the White case: White, a female, was assigned to be a forklift operator. Time passed, and she complained of sex harassment. In retaliation, she got transferred to a different non-forklift assignment, but still within the same general job classification. Then she got suspended without pay for alleged insubordination (the employer ended up reversing the suspension after 37 days and giving her backpay, but that fact is not relevant to whether the suspension was “retaliation”). White saw a doctor for emotional distress because of the suspension.

White complained of retaliation in the transfer to a different, dirtier, more arduous job. She also complained of retalition in the suspension.

At trial, White won her case and won a modest amount of compensatory damages, about $43,000. On first appeal, the appealas court reversed the judgement, feeling that the acts of retaliation were not bad enough to constitute an adverse employment action.

On second appeal, the appeals court changed its mind and allowed White to keep her victory.

The Employer, Burlington Northern, appealed to the US Supreme Court. The main issue on appeal to the USSC was whether a job transfer to a dirtier, more arduous job might be bad enough to support a retaliation claim. Also, whether a suspension might be bad enough to support a retaliation claim.

The USSC has effectively decided as follows: Each case is unique, and all facts count, but, the Court thinks the transfer was bad enough under the circumstances to support White’s retaliation claim. The Court also thinks the 37 day suspension was bad enough, and it doesn’t matter that the employer decided later to give her backpay - she suffered emotional distress from the suspension requiring medical care.

The new standard

The standard for determining whether an act (or acts) of retaliation might be bad enough to be actionable is as follows: “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” ——- What does THAT mean?

We don’t know yet exactly what the new standard means. The meaning will be developed slowly by courts as they decide cases.

The new standard is designed to ask the jury a question: [to paraphrase] “Jury, do you think the Acts of Retaliation were bad enough to risk scaring a reasonable employee away from filing a complaint or giving a supporting statement?” —— For many minor bad things, the jury will conclude that no reasonable person would be afraid of those things.

Once again, here’s a link to the case of Burlington Northern v. White.