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 In Burlington Northern & Santa Fe Railway Co. v. White, (2006) 548 U.S. ___, the United States Supreme Court resolved the split among the federal circuits over whether an employer's conduct must be related to employment or the workplace, and how harmful that conduct must be, to constitute an "adverse employment action" sufficient to establish retaliation under Title VII of the Civil Rights Act of 1964. The Court held that "discrimination" under the anti-retaliation provision of Title VII is not limited to discriminatory actions that are workplace related or employment related. Additionally, the Court held that, to constitute an adverse employment action, the seriousness of the harm must be such as to "dissuade[] a reasonable worker from making or supporting a charge of discrimination."
In determining the appropriate standard for retaliation claims, the United States Supreme Court compared the anti-discrimination provision of Title VII to the Act's anti-retaliation provision. Title VII's core anti-discrimination provision-42 U.S.C. § 2000e-2(a)- provides that it is unlawful for an employer, among other things, "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin..." On the other hand, Title VII's anti-retaliation provision-42 U.S.C. § 2000e-3(a)- prohibits an employer from, among other things, "discriminat[ing] against" an employee because he or she "opposed any practice" made unlawful by Title VII.
Looking to the plain language of both sections, the Court noted that the anti-discrimination section limits unlawful actions to those that "affect employment or alter the conditions of the workplace," while the anti-retaliation provision contains "no such limiting words." The Court concluded that Congress recognized an employer could "retaliate against an employee by taking actions not directly related to his or her employment" and, therefore, intended to create a distinction between the anti-discrimination and anti-retaliation provisions. Limiting the anti-retaliation provision to employment-related activities "would not deter the many forms that retaliation can take" outside the workplace, such as the initiation of criminal or civil charges against an employee. Additionally, the Court held that the anti-retaliation provision does not protect an individual from all retaliation, but rather only such retaliation that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
Based on these standards, the Court held that assigning plaintiff, the only female working in the Maintenance of Way department at Burlington's Tennessee yard, to a more arduous job and suspending her, even with full pay, following her complaint of sexual action for purposes Title VII's anti-retaliation provision because such conduct "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
The California Supreme Court recently reached a different conclusion in analyzing very similar language under the California Fair Employment and Housing Act ("FEHA"). (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1050-51.) Similar to Title VII, the FEHA's core anti-discrimination provision (Gov. Code, § 12940, subd. (a).) makes it unlawful for an employer, because of a protected class, "to discriminate against the person in compensation or in terms, conditions or privileges of employment.," while the FEHA's antiretaliation provision (Gov. Code, § 12940, subd. (h).) makes it unlawful for an "employer...to discharge, expel, or otherwise discriminate against any person" for opposing a practice forbidden under the FEHA. The plaintiff in Yanowitz argued that because the "otherwise discriminate" language in the anti-retaliation provision does not contain the limiting language in the anti-discrimination provision-specifically, the "terms, conditions, or privileges of employment" language-the anti-retaliation section should be interpreted to protect employees against a broader range of adverse employment actions than those encompassed by the anti-discrimination provision.
Unlike the United States Supreme Court, however, the California Supreme Court in Yanowitz did not provide a greater degree of protection under the FEHA's anti-retaliation provision, holding that "the Legislature intended to extend a comparable degree of protection both to" employees subject to direct discrimination and to employees discriminated against based on improper retaliation. (36 Cal.4th at 1050.)
Thus, under Burlington Northern and Yanowitz, those who complain of discrimination are afforded greater protection against retaliation than the victims of direct discrimination under federal law, but not necessarily under California law. While it is interesting to note the divergent conclusions of Burlington Northern and Yanowitz, to minimize the risk of retaliation claims, California employers must be aware of and comply with the broader reach of the federal standard. Managers should be counseled regarding the possibility that non-traditional, non-work related conduct-including, presumably post-employment conduct, could form the basis of a retaliation claim under Title VII. Of course, proper documentation of poor performance prior to a complaint is essential to defending against claims under either standard.
Bruce Timm is a Senior Associate in Littler Mendelson's Sacramento office.
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