Some employees, finding it difficult to prevail in direct discrimination cases in today's diverse workplaces, turn to retaliation claims as a way to protest treatment by their employers.  How far does such protection extend?  Does any differing treatment that the employee perceives as a "slight" constitute actionable retaliation?

The United States Supreme Court has developed a standard for unlawful retaliation cases that may result in an increase in these claims.  Consequently, the Court has given employers even more reason to use great care in making any employment decision that singles out an employee who has recently complained of an unlawful employment practice.

In Burlington v. White, the Supreme Court addressed that question for Ms. White, a female forklift driver who reported a male co-worker for saying a woman should not be doing her job.  Not long after her complaint, the company reassigned Ms. White to a more physically demanding job.  The Supreme Court evaluated whether the reassignment was an adverse action over which Ms. White could sue or was simply a job change that did not give her a remedy in court.

According to the unanimous Court, retaliation under Title VII may cover actions by an employer that would be "materially adverse" to a "reasonable" employee or job applicant.  If the actions are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination" they may constitute unlawful retaliation.  The Court held that the reassignment of Ms. White, even though not unreasonable in a business sense, was "materially adverse" and sufficient to support a retaliation claim.

The Supreme Court's analysis has important implications, including the following:

• An employer may be held liable for retaliation if its treatment of the employee varies from the status quo even if it has not taken action, such as a demotion or decrease in pay, that would negatively affect an employee's income or rank within the organization.
• The standard, whether action is harmful enough that it "could well dissuade" an employee from reporting unlawful conduct, is vague, which means that outcomes in retaliation cases will be less predictable for a few years as courts determine the boundaries of the claim.
• More jury trials, and fewer dismissals by judges, will likely occur over the next few years because the key issue—what is harmful enough to dissuade a reasonable person—is the kind of factual inquiry that the court system generally entrusts to juries.

Following the White decision, retaliation claims may be more appealing to disgruntled employees.  Employers must consider carefully any action that could be perceived as retaliation, particularly if a complaining employee is singled out for different treatment.