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Spring 2007
Employment Law Bulletin

The Effect of Burlington Northern On Massachusetts Employers
By Mary Jo Kennedy and Carol Kamm

Almost a year ago, the U.S. Supreme Court issued its decision in Burlington Northern & Santa Fe Railway Co. v. White, an employment discrimination case that established a new and broader standard for determining which acts by an employer constitute retaliation under federal law. Many employers were concerned that there would be an increase in retaliation claims and that courts would scrutinize virtually all employment decisions. Cases decided since Burlington indicate that, at least so far, this fear is unfounded. The courts are carefully applying the Burlington standard and generally deeming retaliatory only materially adverse employment actions that are causally related to the employee’s protected activity. However, Burlington and its progeny highlight the fact that, in certain situations, otherwise trivial employment decisions can be considered retaliatory, and that employers have to be particularly careful that there are legitimate non-retaliatory reasons for the action. The discussion below summarizes the guidance that can be gleaned from these post-Burlington decisions.

Prior to Burlington, it had long been settled that Massachusetts employers could not discharge or otherwise discriminate against a person because he opposed a practice forbidden under the federal or state discrimination laws or because he filed a complaint, testified or assisted in any proceeding investigating a discrimination claim. To succeed on a retaliation claim under Massachusetts law, an employee had to show that (1) he reasonably and in good faith believed that his employer was engaged in wrongful discrimination, (2) he engaged in legally protected conduct, (3) he suffered an adverse employment action, and (4) a causal connection existed between the protected activity and the adverse employment action. Protected activity included filing a formal complaint of discrimination, complaining to management or filing an internal complaint of harassment, or meeting with co-workers to discuss efforts to address unlawful discrimination. Generally, Massachusetts courts determined whether the allegedly retaliatory action constituted a change in working conditions that created a material disadvantage in the person’s employment.

Burlington established a standard for determining retaliatory acts under federal law that, while broader, is substantially consistent with Massachusetts state law. In Burlington, Ms. White was initially hired as a track laborer for the railway. She was the only woman in her department. She complained to her employer that her immediate supervisor sexually harassed her. The railway suspended the supervisor for ten days. It also reassigned Mrs. White from the forklift duties she had been doing because her male co-workers complained that “in fairness” a more senior man should have the “less arduous and cleaner job” of a forklift operator. Ms. White filed sex discrimination and retaliation claims with the EEOC against the railway. After the employer received notice of the EEOC complaint, Ms. White was suspended without pay for insubordination after a dispute with her supervisor. Ms. White pursued the railway’s internal grievance procedure and, after thirty-seven days of suspension, was reinstated to her position with back pay. She then filed a federal court action, in which a jury ultimately found in her favor on both the sex discrimination and retaliation claims.

The Court in Burlington held that an employer’s liability for retaliation is not limited to actions that affect the terms, conditions or status of employment or that occur at the workplace. The Court held that the retaliation provisions of federal law cover those employer actions that would be “materially adverse to a reasonable employee or job applicant” and would “well dissuade a reasonable worker from making or supporting a charge of discrimination.” Petty slights or minor annoyances that can occur in the workplace would be considered trivial conduct and not retaliation.

The broad language in Burlington and its application in subsequent decisions provide some additional guidance to employers in determining what conduct would be considered materially adverse and what would be trivial. Certain employment actions have generally been and are still considered material adverse actions that could constitute retaliation, provided they are causally related to the protected activity. These include:

  • Actions affecting the terms and conditions of employment, such as termination, failure to promote, or a denial of tangible employment benefits that has an adverse financial impact on the employee;
  • Filing of false criminal charges against an employee who complained about discrimination;
  • Work schedule changes that have a significant impact on an employee, such as one with childcare obligations;
  • Excluding an employee from training that would contribute significantly to professional advancement; and
  • A lateral transfer that results in a change in responsibilities so significant that it constitutes a career setback.

In the few decisions since Burlington, federal courts within the First Circuit (which includes Massachusetts) have held that several routine or trivial actions do not rise to the level of material adversity required by Burlington. These include:

  • A delay in satisfying requests to accommodate a disability, where the delay did not cause significant injury or harm;
  • A denial of a transfer request in order to lessen commute time;
  • Letters from supervisors criticizing an employee’s performance, where the letters were not put in a personnel file and stopped short of disciplining the employee;
  • Belated recognition and award to an employee, in circumstances where the employer would normally have given an award to the employee in the prior year;
  • Denial of Equal Employment Opportunity representation at an informal meeting with a supervisor to discuss regular work duties;
  • Training other employees for a potential job vacancy for which the plaintiff employee was qualified;
  • Lateral transfer to a position that had similar duties and did not, in substance, amount to a demotion, even though the employee felt “stigmatized and punished” by the transfer; and
  • Criticism of job performance that had no tangible impact on employment.

On the other hand, trial-level courts applying Burlington have found that other arguably routine actions can constitute retaliation. One federal trial court has held that stripping the employee of a prestigious higher-level duty within his job description and assigning him lower-level clerical work, without a change in salary or grade, could constitute retaliation. Another federal trial court has held that an employer’s refusal to certify an employee for training for leadership programs, where certification was necessary for the employee to compete for entry-level management positions, could constitute retaliation.

Burlington sets out a general retaliation standard. Under that standard, seemingly innocuous or trivial actions may well constitute retaliation, depending on the particular circumstances in which they occur. Employers must carefully evaluate whether any employment actions taken with respect to such an employee may be considered retaliatory. If a reasonable person would view the proposed employment action as, in essence, a demotion, or as a deterrence from making or supporting a charge of discrimination, the action may be considered by a court to be retaliatory. Employers must proceed with caution.

Mary Jo Kennedy is a Partner in our Springfield office and the Employment Law Practice Group Coordinator. She can be reached at [email protected] or at 413-272-6242. Carol Kamm is Counsel in our Boston office and can be reached at [email protected] or at 617-368-2502.