LegalSpeak: Burlington Northern v. White (2006)

Age Discrimination Read more from
Chapter Employment Law

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace [i.e., employers can retaliate against employees in a variety of ways—some of which donít take place at work]. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant [this means that retaliation consists of real harm to an employee, not just petty slights or minor things]. In the present context that means that 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….

The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Appeals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” …

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.


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