Federal statutes and regulations: Civil Rights Act, Title VII.

Standard for Retaliatory Conduct.--In the past decade, the number of retaliation claims under Title VII of the Civil Rights Act of 1964 (1) has skyrocketed, (2) and commentators have highlighted the impact of retaliation on workplace dynamics. (3) However, the circuits have developed divergent standards for how severe and job-related an employer's conduct must be to constitute cognizable retaliation and have differed as to whether the retaliation standard is the same as that for the discrimination prohibited by the statute's core provision. Last Term, in Burlington Northern & Santa Fe Railway Co. v. White, (4) the Supreme Court sided with a minority of circuits in establishing a standard for retaliatory conduct broader than the standard for the underlying discrimination: actionable retaliation must be "material" but need not occur in the workplace or be employment-related. (5) The expansive, flexible new standard recenters a jurisprudence that had run off course in the lower courts and advances Title VII's antidiscrimination goals by reducing deterrents to employee claims. However, while clarifying the statute's retaliation standard, the Court compounded existing uncertainty regarding the scope of Title VII's core discrimination provision.

Sheila White was the only woman employed in the Maintenance of Way Department at Burlington Northern's Memphis rail yard. (6) She was hired as a track laborer, a job that involved hauling heavy equipment and manually clearing refuse from the right-of-way. (7) In light of her experience operating forklifts, White was quickly assigned to the more prestigious and desirable job of forklift operator when that position became available. (8) In September 1997, White complained to company officials of offensive sex-based remarks by her supervisor. (9) Burlington sent the supervisor to sexual harassment training (10) but also removed White from forklift duty on grounds that the more desirable job should go to a "more senior man." (11) White subsequently filed two charges with the Equal Employment Opportunity Commission (EEOC), claiming that her employer had retaliated against her for her original sexual harassment complaint. (12) A few days after the charges were mailed, White was suspended without pay for alleged insubordination stemming from a disagreement with a supervisor. (13) She invoked internal grievance procedures, which led Burlington to conclude that she had not, in fact, been insubordinate; the company subsequently reinstated her with back pay for her thirty-seven-day suspension. (14) White filed an additional charge with the EEOC, alleging that the suspension was retaliatory, (15) and then exhausted administrative remedies before filing suit in the United States District Court for the Western District of Tennessee. (16) Her complaint alleged that her changed job responsibilities and her suspension each amounted to unlawful retaliation under section 704 of Title VII. (17) A jury found in her favor on both claims and awarded her $43,500 in damages. (18)

The Sixth Circuit reversed, holding that White had failed to make a prima facie retaliation claim because neither her changed job responsibilities nor her suspension constituted the requisite "materially adverse employment action" under the court's standard. (19) Subsequently, the full court vacated the decision and agreed to hear the case en banc. (20) The en banc court unanimously voted to affirm the district court's judgment, but the judges disagreed on the correct standard for retaliation. (21) Writing for the court, Judge Gibbons defended the existing Sixth Circuit definition of an adverse employment action, which required "a materially adverse change in the terms of ... employment." (22) She explicitly rejected the more expansive definition advanced by the Ninth Circuit, the EEOC, and Judge Clay's concurrence, (23) but held that White's shift in duties and suspension each were adverse employment actions under the existing definition. (24)

The Supreme Court affirmed. Writing for the Court, Justice Breyer (25) agreed that Burlington Northern had unlawfully retaliated against White, but rejected the Sixth Circuit's standard for retaliation. (26) Justice Breyer began with a textual argument that the standard for retaliatory conduct under section 704 is not the same as the standard for discriminatory conduct under section 703. (27) Unlike section 703, which limits unlawful workplace discrimination to actions "with respect to [an employee's] compensation, terms, conditions, or privileges of employment," (28) section 704 merely prohibits employers from "discriminat[ing] against" employees who have engaged in protected activity. (29) Adhering to the presumption that "Congress acts intentionally and purposely in the disparate inclusion or exclusion" of language when subsections of a statute are worded differently, Justice Breyer reasoned that the absence of limiting language …