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. 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. 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.
Sheila White was a railroad employee. She complained about sexist comments a manager allegedly made and filed a charge with the EEOC. Shortly thereafter, she was suspended without pay, allegedly for incidents of "insubordination." When White grieved the suspension internally, the company determined she was not insubordinate, and reinstated her with back pay. The employer also allegedly assigned White undesirable job duties, moving her from forklift duty to other duties within her track laborer job description.
The Supreme Court was asked to resolve a dispute among the courts of appeals regarding the standards applied in retaliation cases. Some courts held that actionable retaliation should involve an "ultimate" employment action, such as firing, demotion, etc. Others held that nearly any negative experience motivated by retaliation for engaging in protected activity would be actionable.
The Supremes took a middle ground, but one which will result in an increase in retaliation claims, which already have been on the rise. Here are the main points -
a. Whether an employee experienced a material adverse action must be measured "objectively" - from the standpoint of a "reasonable" employee subjected to retaliation;
b. The types of conduct amounting to retaliation must be measured in context. Seemingly trivial slights (ostracism) can become retaliatory when there is harm to the employee's career (e.g., a retaliatory failure to invite an employee to a weekly staff lunch meeting.);
c. Not every kind of retaliatory act is actionable; only ones that cause actual harm; and
d. Employers may be liable for non-work related retaliation if proven that the employer committed some action or omission away from the workplace that was related to the employee's exercise of protected activity.
The case applies only to federal claims, not to those brought under California's FEHA. The California Supreme Court's decision in Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 addressed the same issue in the context of the Fair Employment and Housing Act. The California Supreme Court's holding is similar to the SCOTUS decision in White:
we conclude that the proper standard for defining an adverse employment action is the "materiality" test, a standard that requires an employer's adverse action to materially affect the terms and conditions of employment . . . .rather than the arguably broader "deterrence" test adopted by the Court of Appeal in the present case. We further conclude that in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances and to apply the "continuing violation" doctrine that we recently adopted in Richards v. CH2M Hill, Inc. 26 Cal.4th 798.
So, California's Supreme Court's definition of adverse action arguably is more narrow than the U.S. Supreme Court's decision in White. For example, the adverse action in Yanowitz must be work-related; under federal law, it does not.
Perhaps the California Supreme Court will take up the issue anew to address White.
