Publication

"U.S. Supreme Court Decision Broadly Interprets Retaliation Provision of Title VII;Tenth Circuit Case Illustrates Importance of Conducting Independent Investigations Before Taking Adverse Employment Actions Based on Information From a Potentially Biased Subordinate"

In Burlington Northern and Santa Fe Railway Co. v. White, No. 05-259 (June 22, 2006), a decision that many commentators have noted is likely to lead to an increase in the number of retaliation claims alleged and litigated under Title VII of the Civil Rights Act of 1964 (“Title VII”), the U.S. Supreme Court interpreted the scope of Title VII’s anti-retaliation provision to be broader than the substantive anti-discrimination provisions.

The standard established by the Supreme Court in Burlington Northern prohibits materially adverse actions that could dissuade a reasonable employee or applicant from making or supporting a charge of discrimination, regardless of whether such actions are related to employment or occur at the workplace. Thus, employers are prohibited from taking adverse actions against such individuals not only with regard to “ultimate employment decisions” such as hiring and firing, but also – depending upon the context – with regard to such matters as undesirable schedule changes, reassignment of job duties, and exclusion from activities that could contribute to an employee’s professional advancement.

Whether or not more litigation follows in the wake of Burlington Northern as predicted, the case is certain to affect the manner in which employers make personnel decisions following receipt of a complaint of discrimination.

Also In This Issue: Tenth Circuit Case Illustrates Importance of Conducting Independent Investigations Before Taking Adverse Employment Actions Based on Information From a Potentially Biased Subordinate

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