Academic journal article The Review of Litigation

Taking the Detour around Defending Protected Activity: How Burlington Northern & Santa Fe Railway Co. V. White Unnecessarily Complicates Litigation of Retaliation Claims

Academic journal article The Review of Litigation

Taking the Detour around Defending Protected Activity: How Burlington Northern & Santa Fe Railway Co. V. White Unnecessarily Complicates Litigation of Retaliation Claims

Article excerpt

I. INTRODUCTION

Title VII of the Civil Rights Act of 1964 has several provisions under which employees and applicants for employment may sue employers for allegedly unlawful employment practices.1 Section 703, sometimes referred to as Title VIF s "antidiscrimination provision,"2 provides in part that it is an unlawful employment practice for an employer to "fail or refuse to hire or to discharge any individual, or otherwise 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."3 section 704, sometimes referred to as the "anti-retaliation provision,"4 currently provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Thus, Title VII makes it unlawful both to discriminate against an employee or applicant based on a protected class-such as race, religion, or sex-and to retaliate against an employee or applicant for engaging in protected activity, such as complaining about unlawful discrimination that would violate the anti-discrimination provision.6

From the 1970s until June 2006, federal courts interpreted Title VII ' s anti-discrimination and anti-retaliation provisions similarly, applying the framework from the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green.1 The McDonnell Douglas framework involves a three-step approach through which the burden of production is shifted from the employee to the employer and back.8 During the employee's initial burden, he or she must prove a prima facie case of either discrimination or retaliation.9 After the employee makes his or her prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory, or nonretaliatory reason why it acted against the employee.10 If the employer articulates such a reason, the employee must then prove that the articulated reason is pretext for unlawful discrimination or retaliation.11

In cases derived from the anti-discrimination provision, the employee must prove that: (1) he or she is a member of a protected class; (2) he or she was qualified for the position at issue or was meeting the employer's legitimate performance expectations; (3) the employer took adverse employment action against the employee; and (4) there are facts warranting an inference of discrimination, such as that the employer treated similarly situated employees outside the protected class more favorably.12 Prior to the Supreme Court's June 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White,13 the employee's prima facie case for a claim falling under the anti-retaliation provision involved proving that (l)he or she engaged in protected activity, (2) the employer took adverse employment action against the employee, and (3) a causal link existed between the protected activity and adverse employment action.14

In White, the Supreme Court made a distinction between the anti-discrimination provision and the anti-retaliation provision and determined that an employee seeking to make a prima facie case for retaliation under Title VII, instead of showing an "adverse employment action," must establish that "a reasonable employee would have found the challenged action materially adverse" and that the action "might well have dissuaded a reasonable worker from" engaging in protected activity. …

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