Written by Fiona W. Ong from Shawe Rosenthal LLP on August 28, 2024
As most employers know, Title VII prohibits not only discrimination or harassment based on race, ethnicity, religion or gender, but also retaliation for opposing any unlawful practice (e.g. complaining about discrimination or harassment). But the standards for proving each are different, and a recent case from the U.S. Court of Appeals for the First Circuit reminds employers that a lower standard of proof applies to retaliation cases.
In Stratton v. Bentley University, the employee asserted various discrimination claims as well as a retaliation claim. The federal district court granted summary judgment for the employer, finding that, even assuming all facts in the employee’s favor, the employee’s claims had no merit as a matter of law. On appeal, the First Circuit affirmed the district court’s decision, but took the opportunity to clarify the standard that applies to retaliation claims.
In order to succeed on a retaliation claim, a plaintiff must show that (1) they engaged in protected activity; (2) they suffered some materially adverse action; and (3) the adverse action was causally linked to their protected activity. Previously, in order to establish a materially adverse action, a plaintiff was required to show conduct that was so “severe or pervasive that it materially altered the conditions of her employment.” However, in Burlington N. & Santa Fe Ry. Co. v. White, the U.S. Supreme Court set forth the appropriate standard for materially adverse actions in the context of retaliation claims, finding that they are not limited to actions affecting the terms and conditions of employment. Rather, it covers actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination” – a much lower standard. And the First Circuit clarified that its prior, higher standard was no longer appropriate, and has been replaced with Burlington-Northern’s “might-have-dissuaded” standard.
In our practice, we often see cases in which an employee is unable to establish that they have been subjected to unlawful discrimination or harassment, but they are able to prove retaliation. So employers must be careful to ensure that the treatment of employees who have complained about discrimination or harassment is legitimate and consistent with the treatment of non-complaining employees.
