Adverse action in a Title VII retaliation claim
For retaliation, the test is Burlington Northern's: "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."'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)1 The standard reaches beyond workplace terms, but it screens out trivial harms.
- Statutory hook — § 2000e-3(a) bars discrimination against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter," or because he "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a)2
- Not confined to terms and conditions — "the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Harm outside the workplace can qualify. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)1
- Objective, and trivial harms excluded — The test asks how a reasonable employee would react, and "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)1
- Context decides — "To be sure, reassignment of job duties is not automatically actionable." On the facts, the jury reasonably found a reassignment from forklift duty to standard track-laborer tasks, and a 37-day unpaid suspension later repaid with backpay, materially adverse. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)1
- Muldrow is a discrimination case — Muldrow governs claims under the substantive provision, § 2000e-2(a)(1): "To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment," and that harm need not be significant. The Court kept White separate: "White adopted the standard for reasons peculiar to the retaliation context." Muldrow v. City of St. Louis, 601 U.S. 346 (2024)3
- Causation is but-for — "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m)." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)4
Practice notes
- Keep the two standards apart when pleading both claims. A retaliation act need not touch a term or condition of employment, but it must be materially adverse. A discrimination act must touch a term or condition, but the harm need not be significant. Muldrow, 601 U.S. 3463; White, 548 U.S. 531