South-Western Legal Studies in Business

Retaliation May Exist Even if Employee Not Demoted

Supreme Court held that the retaliation provision of Title VII is broad in application. Any action taken by an employer that a jury finds to be “materially adverse” to an employee is an issue properly for review by a jury.


Employment Discrimination

Key Words

Sex Discrimination; Retaliation

C A S E   S U M M A R Y

White was hired by Burlington as a track laborer, which involves cleaning up around railroad tracks. Soon after she was hired she was made a forklift operator, a preferred job. She was the only woman working in the rail yard. She complained that her supervisor made insulting and inappropriate remarks to her in front of male colleagues and said a woman should not be working there. After an investigation, Burlington suspended the supervisor for 10 days and ordered him to attend sexual-harassment training. White was then removed from forklift duties and put back on track cleaning. She filed a complaint with the EEOC. After the complaint came back to the employer, White was suspended without pay for 37 days for insubordination. Burlington then investigated and reinstated her with backpay and said the insubordination charge was improper. She filed another complaint with the EEOC for retaliation for the suspension and sued. A jury awarded her $43,500 in compensatory damages. The appeals court affirmed the judgment, but members of the court were unclear as to what standard applied. Because of the confusion, the Supreme Court agreed to review the matter.


Affirmed. The retaliation provision of Title VII requires materiality and an objective standard. Whether the reassignment of duties was a material adverse job action was a question for the jury, as was the 37-day suspension. The reassignment, even though not a demotion, could be covered by the retaliation provision. The question is whether an employer’s action could well dissuade a reasonable employee from protected conduct. The fact that the employee was reinstated with back pay does not necessarily preclude suit by the employee.


Burlington Northern & Santa Fe Railway v. White, 126 S.Ct. 2405 (Sup. Ct., 2006)

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