Retaliatory Adverse Employment Actions after White: Determining a "Material Adverse Action"

The purpose of this article is to inform municipal officials of the changing landscape in federal law regarding gender discrimination in the workplace by discussing the recent the decisions of the U.S. Supreme Court and of U.S. Court of Appeals Tenth Circuit.

U.S. Supreme Court

Prior to 2006, most employers and employment law specialists believed that an employee could not successfully make a claim for gender discrimination where there was no material change in the employee’s benefits, work place or schedule. However that all  changed  when the U.S. Supreme Court handed down Burlington Northern & Santa Fe Railway Co. v. White,(i) a ground-breaking decision which dealt with employment retaliation involving a Title VII claim of gender discrimination.(ii)

The plaintiff in White was a woman in a male dominated workforce. She complained that her supervisor repeatedly told her that women should not be working in her department. The male supervisor made numerous insulting comments to her in front of other male employees. She was assigned from her job operating a forklift to that of a manual laborer which was deemed to be a less prestigious job. After she filed an EEOC complaint, her job situation grew worse. She was later confronted by a supervisor and was suspended from her job.

In this decision the Court decided that the scope of Title VII anti-retaliation provision applied to material claims of adversity, which are those that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 

The Court provided several examples of material adversity:

  • A schedule change in an employee’s work schedule which might make it difficult to remain employed because of a family situation;
  • A supervisor excluding an employee from training which would be a detriment to his or her professional advancement.

The Court concluded that White’s reassignment and suspension were “materially adverse” and upheld the jury’s finding that she suffered unlawful retaliation under Title VII.

U. S. Court of Appeals Tenth Circuit

Unfortunately, the Court provided little guidance on how appellate courts were to define “material adverse decisions” in the field of unlawful employment retaliation. The Tenth Circuit ventured into this uncertainty in Williams v. W.D. Sports, N.M., Inc.(iii)   Plaintiff was employed by a minor league hockey team. She first complained about gender discrimination to her supervisors regarding “repeated use of gender-specific profanity.” She later took her complaints to the state’s labor department and human rights division. When one of her supervisor’s learned of this he suggested she resign because of rumors of a purported interoffice romantic affair. The employer threatened to use these rumors, unfounded as they were, to ruin her marriage if she didn’t resign. Plaintiff refused and was terminated.

When she applied for unemployment compensation, her employer opposed it by submitting a written statement that she had been terminated for cause related to “repeated instances of sexual misconduct, drinking alcohol, and theft of company property,” as well as other misdeeds. At the hearing the employer never provided any such evidence. The employer’s lawyer proposed to drop its opposition to her claim for unemployment compensation if she would drop her legal action of unlawful retaliation under Title VII.

Williams proceeded to trial on the issue of unlawful retaliation based upon (1) the threats by her supervisor to go public about the rumors of inappropriate sexual activity; and (2) her employer’s opposition to the application for unemployment compensation benefits.

Williams presented evidence seeking to establish that the work environment caused her to suffer from post-traumatic stress disorder. The employer offered evidence that a minor league hockey office was rowdy and informal and that many people, including plaintiff, used profanity and foul language in the normal course of activity.

The district court found in favor of the employer reasoning that plaintiff ultimately received the unemployment benefits, therefore, she didn’t suffer an adverse employment action regarding the opposition to the unemployment benefits.

In a case for Title VII retaliation, plaintiff has the burden to prove that he or she (1) engaged in protected opposition to discrimination; (2) suffered an adverse action that a reasonable employee would have found material; and (3) an existence of a causal nexus between the employee’s opposition and the employer’s adverse action.

Before White, some appellate courts believed that an employee needed not only to suffer a materially adverse action, but the consequences of the action had to be economic,. i.e., termination, demotion, or other similar action affecting the employee’s job. Other appellate courts allowed claims to proceed  when the employer’s actions adversely affected the employee outside of the employment relationship. The Tenth Circuit reasoned that a plaintiff was not required to prove some tangible, subjective psychological or monetary injury to support a claim for an adverse material action. All that is required of the plaintiff is to show a jury could conclude that a reasonable employee would have found the employer’s conduct sufficiently adverse that he or she might have been dissuaded by such conduct from making or supporting a charge of unlawful discrimination.


The old “best” solutions are not available or safe any longer. Lateral transfers to defuse a situation are fraught with danger where an employee has filed or threatened to file a claim of retaliation.  The transferred employee can claim that the new position is not as prestigious or possibly less attractive for upward mobility within the municipal organization. On the other hand, the employer cannot sit idly by and leave an employee in a hostile situation because that too may be considered a “materially adverse action.” In addition, an employer cannot take retaliatory action after the employee has terminated employment, in effect, “to get even.” The employer’s actions will likely be construed by the court as a means in which to dissuade other employees from raising claims of gender discrimination.

Municipal employers and their legal counsel must tread carefully in this area and ask themselves whether their actions could be construed as dissuading a reasonable person from complaining or supporting a complaint of gender discrimination.
 i   548 U. S. 53 (2006)
i i  42 U.S.C. § 2000e, et seq.
iii  497 F.3d 1079 (10th Cir. 2007)

Retaliatory Adverse Employment Actions after White: Determining a “Material Adverse Action "was written by Stephen E. Reel, OMAG General Counsel. You may contact the author at The information in this bulletin in intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article.  

November 2009


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