In an opinion issued yesterday, the United States Supreme Court clarified the standards for determining what types of actions by an employer can form the basis of a retaliation claim under Title VII. In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court found that actions need not be related to employment or occur at the workplace to constitute retaliation. Rather, the Court found that any action that would have been materially adverse to a reasonable employee can be actionable. Justice Breyer wrote the opinion, which was joined by seven other justices. Justice Alito wrote a separate opinion in which he concurred in the decision of the majority, but not its analysis.

Title VII forbids employers from taking actions that "discriminate against" an employee because he or she "opposed" discrimination or has participated in a Title VII investigation, proceeding or hearing. However, there has been disagreement between the various Courts of Appeals as to whether the challenged action had to be employment or workplace related and as to how harmful that action had to be to constitute retaliation.

The Burlington decision resolves both of these issues. Justice Breyer first explains that the objective of preventing harm to individuals who engage in protected activity cannot be achieved if the anti-retaliation provision were to apply only to actions and harm that concern employment and the workplace. As such, the Court holds Title VII's anti-retaliation provision reaches beyond workplace or employment-related retaliatory acts and harm.

The Court then goes on to confront the question of how harmful an action must be for it to form the basis of a retaliation claim. It concludes that "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." Thus, unlike a discrimination plaintiff who must establish that he or she suffered an adverse employment action, a retaliation plaintiff need only show that the action in question might have influenced a reasonable person not to engage in protected activity.

In his concurring opinion, Justice Alito points out that the reasonable worker test established by the majority focuses not on any reasonable worker but on a reasonable worker with similar characteristics to the plaintiff. This is seen in Justice Breyer's use of the illustration that "A schedule change may make little difference to many workers but may matter enormously to a young mother with school age children." The result, according to Justice Alito, is that courts will be required to look to the sensitivities of particular types of individuals, not just those of a "reasonable worker." The application of the "reasonable worker" standard will no doubt be clarified in future Court of Appeals decisions.

The Burlington decision is important because it voids two arguments commonly put forth by defendant employers: that the challenged action does not relate to employment and that the challenged action is not sufficiently adverse to support a claim. In light of Burlington, employers must consider the possibility of a retaliation claim before taking any action at all with respect to employees who have previously raised any issues of discrimination or made any claims.