Burlington Northern & Santa Fe Railway Co. v. White

OPINION OF THE COURT BURLINGTON N. & S. F.&NBSP;R.&NBSP;CO. V. WHITE 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-259 BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, PETITIONER v. SHEILA WHITE

															on writ of certiorari to the united states court of
appeals for the sixth circuit

															[June 22, 2006]

															   Justice Breyer delivered the
opinion of the Court.

															   Title VII of the Civil Rights Act
of 1964 forbids employment discrimination against “any individual”
based on that individual’s “race, color, religion, sex, or national
origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended, 42 U.
S. C. §2000e–2(a). A separate section of the Act—its
anti-retaliation provision—forbids an employer from
“discriminat[ing] against” an employee or job applicant because
that individual “opposed any practice” made unlawful by Title VII
or “made a charge, testified, assisted, or participated in” a Title
VII proceeding or investigation. §2000e–3(a).

															   The Courts of Appeals have come to different
conclusions about the scope of the Act’s anti-retaliation
provision, particularly the reach of its phrase “discriminate
against.” Does that provision confine actionable retaliation to
activity that affects the terms and conditions of employment? And
how harmful must the adverse actions be to fall within its
scope?

															   We conclude that the anti-retaliation
provision does not confine the actions and harms it forbids to
those that are related to employment or occur at the workplace. We
also conclude that the provision covers those (and only those)
employer actions that would have been materially adverse to a
reasonable employee or job applicant. In the present context that
means that the employer’s actions must be harmful to the point that
they could well dissuade a reasonable worker from making or
supporting a charge of discrimination.

															I

															A

															   This case arises out of actions
that supervisors at petitioner Burlington Northern &
Santa Fe Railway Company took against respondent Sheila White,
the only woman working in the Maintenance of Way department at
Burlington’s Tennessee Yard. In June 1997, Burlington’s roadmaster,
Marvin Brown, interviewed White and expressed interest in her
previous experience operating forklifts. Burlington hired White as
a “track laborer,” a job that involves removing and replacing track
components, transporting track material, cutting brush, and
clearing litter and cargo spillage from the right-of-way. Soon
after White arrived on the job, a co-worker who had previously
operated the forklift chose to assume other responsibilities. Brown
immediately assigned White to operate the forklift. While she also
performed some of the other track laborer tasks, operating the
forklift was White’s primary responsibility.

															   In September 1997, White
complained to Burlington officials that her immediate supervisor,
Bill Joiner, had repeatedly told her that women should not be
working in the Maintenance of Way department. Joiner, White said,
had also made insulting and inappropriate remarks to her in front
of her male colleagues. After an internal investigation, Burlington
suspended Joiner for 10 days and ordered him to attend a
sexual-harassment training session.

															   On September 26, Brown told White about
Joiner’s discipline. At the same time, he told White that he was
removing her from forklift duty and assigning her to perform only
standard track laborer tasks. Brown explained that the reassignment
reflected co-worker’s complaints that, in fairness, a “ ‘more
senior man’ ” should have the “less arduous and cleaner job”
of forklift operator. 364 F. 3d 789, 792 (CA6 2004) (case
below).

															   On October 10, White filed a complaint with
the Equal Employment Opportunity Commission (EEOC or Commission).
She claimed that the reassignment of her duties amounted to
unlawful gender-based discrimination and retaliation for her having
earlier complained about Joiner. In early December, White filed a
second retaliation charge with the Commission, claiming that Brown
had placed her under surveillance and was monitoring her daily
activities. That charge was mailed to Brown on December 8.

															   A few days later, White and her immediate
supervisor, Percy Sharkey, disagreed about which truck should
transport White from one location to another. The specific facts of
the disagreement are in dispute, but the upshot is that Sharkey
told Brown later that afternoon that White had been insubordinate.
Brown immediately suspended White without pay. White invoked
internal grievance procedures. Those procedures led Burlington to
conclude that White had not been insubordinate. Burlington
reinstated White to her position and awarded her backpay for the 37
days she was suspended. White filed an additional retaliation
charge with the EEOC based on the suspension.

															B

															   After exhausting administrative
remedies, White filed this Title VII action against Burlington in
federal court. As relevant here, she claimed that Burlington’s
actions—(1) changing her job responsibilities, and (2) suspending
her for 37 days without pay—amounted to unlawful retaliation in
violation of Title VII. §2000e–3(a). A jury found in White’s favor
on both of these claims. It awarded her $43,500 in compensatory
damages, including $3,250 in medical expenses. The District Court
denied Burlington’s post-trial motion for judgment as a matter of
law. See Fed. Rule Civ. Proc. 50(b).

															   Initially, a divided Sixth
Circuit panel reversed the judgment and found in Burlington’s favor
on the retaliation claims. 310 F. 3d 443 (2002). The full
Court of Appeals vacated the panel’s decision, however, and heard
the matter en banc. The court then affirmed the District Court’s
judgment in White’s favor on both retaliation claims. While all
members of the en banc court voted to uphold the District Court’s
judgment, they differed as to the proper standard to apply. Compare
364 F. 3d, at 795–800, with id ., at 809 (Clay, J.,
concurring).

															II

															   Title VII’s anti-retaliation
provision forbids employer actions that “discriminate against” an
employee (or job applicant) because he has “opposed” a practice
that Title VII forbids or has “made a charge, testified, assisted,
or participated in” a Title VII “investigation, proceeding, or
hearing.” §2000e–3(a). No one doubts that the term “discriminate
against” refers to distinctions or differences in treatment that
injure protected individuals. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 , 174
(2005); Price Waterhouse v. Hopkins, 490 U. S. 228 , 244
(1989) (plurality opinion); see also 4 Oxford English Dictionary
758 (2d ed. 1989) (def. 3b). But different Circuits have come to
different conclusions about whether the challenged action has to be
employment or workplace related and about how harmful that action
must be to constitute retaliation.

															   Some Circuits have insisted upon
a close relationship between the retaliatory action and employment.
The Sixth Circuit majority in this case, for example, said that a
plaintiff must show an “adverse employment action,” which it
defined as a “materially adverse change in the terms and
conditions” of employment. 364 F. 3d, at 795 (internal
quotation marks omitted). The Sixth Circuit has thus joined those
Courts of Appeals that apply the same standard for retaliation that
they apply to a substantive discrimination offense, holding that
the challenged action must “resul[t] in an adverse effect on the
‘terms, conditions, or benefits’ of employment.” Von
Gunten v. Maryland , 243 F. 3d 858, 866 (CA4
2001); see Robinson v. Pittsburgh , 120 F. 3d
1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have
adopted a more restrictive approach. They employ an “ultimate
employment decisio[n]” standard, which limits actionable
retaliatory conduct to acts “ ‘such as hiring, granting leave,
discharging, promoting, and compensating.’ ” Mattern v. Eastman Kodak Co ., 104 F. 3d 702, 707 (CA5 1997);
see Manning v. Metropolitan Life Ins. Co. , 127
F. 3d 686, 692 (CA8 1997).

															   Other Circuits have not so limited the scope
of the provision. The Seventh and the District of Columbia Circuits
have said that the plaintiff must show that the “employer’s
challenged action would have been material to a reasonable
employee,” which in contexts like the present one means that it
would likely have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue , 420 F. 3d 658,
662 (CA7 2005); see Rochon v. Gonzales , 438
F. 3d 1211, 1217–1218 (CADC 2006). And the Ninth Circuit,
following EEOC guidance, has said that the plaintiff must simply
establish “ ‘adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or
others from engaging in protected activity.’ ” Ray v. Henderson , 217 F. 3d 1234, 1242–1243 (CA9 2000). The
concurring judges below would have applied this last mentioned
standard. 364 F. 3d, at 809 (opinion of Clay, J.).

															   We granted certiorari to resolve this
disagreement. To do so requires us to decide whether Title VII’s
anti-retaliation provision forbids only those employer actions and
resulting harms that are related to employment or the workplace.
And we must characterize how harmful an act of retaliatory
discrimination must be in order to fall within the provision’s
scope.

															A

															   Petitioner and the Solicitor
General both argue that the Sixth Circuit is correct to require a
link between the challenged retaliatory action and the terms,
conditions, or status of employment. They note that Title VII’s
substantive anti-discrimination provision protects an individual
only from employment-related discrimination. They add that the
anti-retaliation provision should be read in pari materia with the anti-discrimination provision. And they conclude that the
employer actions prohibited by the anti-retaliation provision
should similarly be limited to conduct that “affects the employee’s
‘compensation, terms, conditions, or privileges of
employment.’ ” Brief for United States as Amicus
Curiae 13 (quoting §2000e–2(a)(1)); see Brief for Petitioner
13 (same).

															   We cannot agree. The language of
the substantive provision differs from that of the anti-retaliation
provision in important ways. Section 703(a) sets forth Title VII’s
core anti-discrimination provision in the following terms:

															   “It shall be an unlawful
employment practice for an employer—

															   “(1) 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; or

															   “(2) to limit, segregate, or classify his
employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee , because of such individual’s race, color, religion,
sex, or national origin.” §2000e–2(a) (emphasis added).

															   Section 704(a) sets forth Title
VII’s anti-retaliation provision in the following terms:

															“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment … 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.” §2000e–3(a) (emphasis added).

															   The underscored words in the
substantive provision—“hire,” “discharge,” “compensation, terms,
conditions, or privileges of employment,” “employment
opportunities,” and “status as an employee”—explicitly limit the
scope of that provision to actions that affect employment or alter
the conditions of the workplace. No such limiting words appear in
the anti-retaliation provision. Given these linguistic differences,
the question here is not whether identical or similar words should
be read in pari materia to mean the same thing. See, e.g. , Pasquantino v. United States, 544 U. S. 349 ,
355, n. 2 (2005); McFarland v. Scott, 512 U. S. 849 ,
858 (1994); Sullivan v. Everhart, 494 U. S. 83 , 92 (1990).
Rather, the question is whether Congress intended its different
words to make a legal difference. We normally presume that, where
words differ as they differ here, “ ‘Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.’ ” Russello v. United States, 464 U. S. 16 , 23
(1983).

															   There is strong reason to believe that
Congress intended the differences that its language suggests, for
the two provisions differ not only in language but in purpose as
well. The anti-discrimination provision seeks a workplace where
individuals are not discriminated against because of their racial,
ethnic, religious, or gender-based status. See McDonnell
Douglas Corp. v. Green, 411 U. S. 792 , 800–801
(1973). The anti-retaliation provision seeks to secure that primary
objective by preventing an employer from interfering (through
retaliation) with an employee’s efforts to secure or advance
enforcement of the Act’s basic guarantees. The substantive
provision seeks to prevent injury to individuals based on who they
are, i.e. , their status. The anti-retaliation provision
seeks to prevent harm to individuals based on what they do, i.e. , their conduct.

															   To secure the first objective, Congress did
not need to prohibit anything other than employment-related
discrimination. The substantive provision’s basic objective of
“equality of employment opportunities” and the elimination of
practices that tend to bring about “stratified job environments,” id ., at 800, would be achieved were all employment-related
discrimination miraculously eliminated.

															   But one cannot secure the second objective by
focusing only upon employer actions and harm that concern
employment and the workplace. Were all such actions and harms
eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate
against an employee by taking actions not directly related to his
employment or by causing him harm outside the workplace.
See, e.g. , Rochon v. Gonzales , 438
F. 3d, at 1213 (FBI retaliation against employee “took the
form of the FBI’s refusal, contrary to policy, to investigate death
threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet , 74 F. 3d 980,
984, 986 (CA10 1996) (finding actionable retaliation where employer
filed false criminal charges against former employee who complained
about discrimination). A provision limited to employment-related
actions would not deter the many forms that effective retaliation
can take. Hence, such a limited construction would fail to fully
achieve the anti-retaliation provision’s “primary purpose,” namely,
“[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337 , 346
(1997).

															   Thus, purpose reinforces what language already
indicates, namely, that the anti-retaliation provision, unlike the
substantive provision, is not limited to discriminatory actions
that affect the terms and conditions of employment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S.
___ (2006) (slip op., at 14) (rejecting statutory construction that
would “trea[t] venue and subject-matter jurisdiction prescriptions
as in pari materia ” because doing so would “overloo[k] the
discrete offices of those concepts”).

															   Our precedent does not compel a contrary
conclusion. Indeed, we have found no case in this Court that offers
petitioner or the United States significant support. Burlington
Industries, Inc. v. Ellerth , 524 U. S. 742 (1998), as
petitioner notes, speaks of a Title VII requirement that violations
involve “tangible employment action” such as “hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” Id ., at 761. But Ellerth does so only
to “identify a class of [hostile work environment] cases” in which
an employer should be held vicariously liable (without an
affirmative defense) for the acts of supervisors. Id ., at
760; see also Pennsylvania State Police v. Suders, 542
U. S. 129 , 143 (2004) (explaining holdings in Ellerth and Faragher v. Boca Raton, 524 U. S. 775 (1998), as
dividing hostile work environment claims into two categories, one
in which the employer is strictly liable because a tangible
employment action is taken and one in which the employer can make
an affirmative defense). Ellerth did not discuss the scope
of the general anti-discrimination provision. See 524 U. S., at 761
(using “concept of a tangible employment action [that] appears in
numerous cases in the Courts of Appeals” only “for resolution of
the vicarious liability issue”). And Ellerth did not
mention Title VII’s anti-retaliation provision at all. At most, Ellerth sets forth a standard that petitioner and the
Solicitor General believe the anti-retaliation provision ought to
contain. But it does not compel acceptance of their view.

															   Nor can we find significant support for their
view in the EEOC’s interpretations of the provision. We concede
that the EEOC stated in its 1991 and 1988 Compliance Manuals that
the anti-retaliation provision is limited to “adverse
employment-related action.” 2 EEOC Compliance Manual §614.1(d), p.
614–5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual
§614.1(d), p. 614–5 (1988) (hereinafter EEOC 1988 Manual). But in
those same manuals the EEOC lists the “[e]ssential [e]lements” of a
retaliation claim along with language suggesting a broader
interpretation. EEOC 1991 Manual §614.3(d), pp. 614–8 to 614–9
(complainant must show “that (s)he was in some manner subjected to
adverse treatment by the respondent because of the protest or
opposition”); EEOC 1988 Manual §614.3(d), pp. 614–8 to 614–9
(same).

															   Moreover, both before and after publication of
the 1991 and 1988 manuals, the EEOC similarly expressed a broad
interpretation of the anti-retaliation provision. Compare EEOC
Interpretive Manual, Reference Manual to Title VII Law for
Compliance Personnel §491.2 (1972) (hereinafter 1972 Reference
Manual) (§704(a) “is intended to provide ‘exceptionally broad
protection’ for protestors of discriminatory employment
practices”), with 2 EEOC Compliance Manual §8, p. 8–13 (1998)
(hereinafter EEOC 1998 Manual), available at
http://www.eeoc.gov/policy/docs/ retal.html (as visited June 20,
2006, and available in Clerk of Court’s case file) (§704(a)
“prohibit[s] any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or
others from engaging in protected activity”). And the EEOC 1998
Manual, which offers the Commission’s only direct
statement on the question of whether the anti-retaliation provision
is limited to the same employment-related activity covered by the
anti-discrimination provision, answers that question in the
negative—directly contrary to petitioner’s reading of the Act. Ibid .

															   Finally, we do not accept the petitioner’s and
Solicitor General’s view that it is “anomalous” to read the statute
to provide broader protection for victims of retaliation than for
those whom Title VII primarily seeks to protect, namely, victims of
race-based, ethnic-based, religion-based, or gender-based
discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14–15. Congress has provided similar kinds
of protection from retaliation in comparable statutes without any
judicial suggestion that those provisions are limited to the
conduct prohibited by the primary substantive provisions. The
National Labor Relations Act, to which this Court has “drawn
analogies … in other Title VII contexts,” Hishon v. King & Spalding, 467 U. S. 69 , 76,
n. 8 (1984), provides an illustrative example. Compare 29 U.
S. C. §158(a)(3) (substantive provision prohibiting employer
“discrimination in regard to … any term or condition of employment
to encourage or discourage membership in any labor organization”)
with §158(a)(4) (retaliation provision making it unlawful for an
employer to “discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under this
subchapter”); see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461
U. S. 731 , 740 (1983) (construing anti-retaliation provision to
“prohibi[t] a wide variety of employer conduct that is intended to
restrain, or that has the likely effect of restraining, employees
in the exercise of protected activities,” including the retaliatory
filing of a lawsuit against an employee); NLRB v. Scrivener, 405 U. S. 117 , 121–122
(1972) (purpose of the anti-retaliation provision is to ensure that
employees are “ ‘completely free from coercion against
reporting’ ” unlawful practices).

															   In any event, as we have explained,
differences in the purpose of the two provisions remove any
perceived “anomaly,” for they justify this difference of
interpretation. See supra , at 8–9. Title VII depends for
its enforcement upon the cooperation of employees who are willing
to file complaints and act as witnesses. “Plainly, effective
enforcement could thus only be expected if employees felt free to
approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 , 292
(1960). Interpreting the anti-retaliation provision to provide
broad protection from retaliation helps assure the cooperation upon
which accomplishment of the Act’s primary objective depends.

															   For these reasons, we conclude that Title
VII’s substantive provision and its anti-retaliation provision are
not coterminous. The scope of the anti-retaliation provision
extends beyond workplace-related or employment-related retaliatory
acts and harm. We therefore reject the standards applied in the
Courts of Appeals that have treated the anti-retaliation provision
as forbidding the same conduct prohibited by the
anti-discrimination provision and that have limited actionable
retaliation to so-called “ultimate employment decisions.” See supra , at 5.

															B

															   The anti-retaliation provision
protects an individual not from all retaliation, but from
retaliation that produces an injury or harm. As we have explained,
the Courts of Appeals have used differing language to describe the
level of seriousness to which this harm must rise before it becomes
actionable retaliation. We agree with the formulation set forth by
the Seventh and the District of Columbia Circuits. In our view, 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.’ ” Rochon , 438
F. 3d, at 1219 (quoting Washington , 420 F. 3d,
at 662).

															   We speak of material adversity because we believe it is important to separate
significant from trivial harms. Title VII, we have said, does not
set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 80
(1998); see Faragher , 524 U. S., at 788 (judicial
standards for sexual harassment must “filter out complaints
attacking ‘the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and
occasional teasing’ ”). An employee’s decision to report
discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and
that all employees experience. See 1 B. Lindemann & P.
Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting
that “courts have held that personality conflicts at work that
generate antipathy” and “ ‘snubbing’ by supervisors and
co-workers” are not actionable under §704(a)). The anti-retaliation
provision seeks to prevent employer interference with “unfettered
access” to Title VII’s remedial mechanisms. Robinson , 519
U. S., at 346. It does so by prohibiting employer actions that are
likely “to deter victims of discrimination from complaining to the
EEOC,” the courts, and their employers. Ibid . And normally
petty slights, minor annoyances, and simple lack of good manners
will not create such deterrence. See 2 EEOC 1998 Manual §8, p.
8–13.

															   We refer to reactions of a reasonable employee because we believe that the provision’s standard for
judging harm must be objective. An objective standard is judicially
administrable. It avoids the uncertainties and unfair discrepancies
that can plague a judicial effort to determine a plaintiff’s
unusual subjective feelings. We have emphasized the need for
objective standards in other Title VII contexts, and those same
concerns animate our decision here. See, e.g. , Suders, 542 U. S., at 141 (constructive discharge
doctrine); Harris v. Forklift Systems, Inc., 510 U. S. 17 , 21
(1993) (hostile work environment doctrine).

															   We phrase the standard in general terms
because the significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters. “The
real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.” Oncale , supra , at 81–82. A schedule change in an employee’s work
schedule may make little difference to many workers, but may matter
enormously to a young mother with school age children. Cf., e.g. , Washington, supra, at 662 (finding
flex-time schedule critical to employee with disabled child). A
supervisor’s refusal to invite an employee to lunch is normally
trivial, a nonactionable petty slight. But to retaliate by
excluding an employee from a weekly training lunch that contributes
significantly to the employee’s professional advancement might well
deter a reasonable employee from complaining about discrimination.
See 2 EEOC 1998 Manual §8, p. 8–14. Hence, a legal standard
that speaks in general terms rather than specific prohibited acts
is preferable, for an “act that would be immaterial in some
situations is material in others.” Washington , supra , at 661.

															   Finally, we note that contrary to the claim of
the concurrence, this standard does not require a
reviewing court or jury to consider “the nature of the
discrimination that led to the filing of the charge.” Post , at 6 (Alito, J., concurring in judgment). Rather,
the standard is tied to the challenged retaliatory act, not the
underlying conduct that forms the basis of the Title VII complaint.
By focusing on the materiality of the challenged action and the
perspective of a reasonable person in the plaintiff’s position, we
believe this standard will screen out trivial conduct while
effectively capturing those acts that are likely to dissuade
employees from complaining or assisting in complaints about
discrimination.

															III

															   Applying this standard to the
facts of this case, we believe that there was a sufficient
evidentiary basis to support the jury’s verdict on White’s
retaliation claim. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U. S. 133 , 150–151
(2000). The jury found that two of Burlington’s actions amounted to
retaliation: the reassignment of White from forklift duty to
standard track laborer tasks and the 37-day suspension without
pay.

															   Burlington does not question the
jury’s determination that the motivation for these acts was
retaliatory. But it does question the statutory significance of the
harm these acts caused. The District Court instructed the jury to
determine whether respondent “suffered a materially adverse change
in the terms or conditions of her employment,” App. 63, and the
Sixth Circuit upheld the jury’s finding based on that same
stringent interpretation of the anti-retaliation provision (the
interpretation that limits §704 to the same employment-related
conduct forbidden by §703). Our holding today makes clear that the
jury was not required to find that the challenged actions were
related to the terms or conditions of employment. And insofar as
the jury also found that the actions were “materially adverse,” its
findings are adequately supported.

															   First, Burlington argues that a reassignment
of duties cannot constitute retaliatory discrimination where, as
here, both the former and present duties fall within the same job
description. Brief for Petitioner 24–25. We do not see why that is
so. Almost every job category involves some responsibilities and
duties that are less desirable than others. Common sense suggests
that one good way to discourage an employee such as White from
bringing discrimination charges would be to insist that she spend
more time performing the more arduous duties and less time
performing those that are easier or more agreeable. That is
presumably why the EEOC has consistently found “[r]etaliatory work
assignments” to be a classic and “widely recognized” example of
“forbidden retaliation.” 2 EEOC 1991 Manual §614.7, pp. 614–31 to
614–32; see also 1972 Reference Manual §495.2 (noting Commission
decision involving an employer’s ordering an employee “to do an
unpleasant work assignment in retaliation” for filing racial
discrimination complaint); EEOC Dec. No. 74–77, 1974 WL 3847, *4
(Jan. 18, 1974) (“Employers have been enjoined” under Title VII
“from imposing unpleasant work assignments upon an employee for
filing charges”).

															   To be sure, reassignment of job duties is not
automatically actionable. Whether a particular reassignment is
materially adverse depends upon the circumstances of the particular
case, and “should be judged from the perspective of a reasonable
person in the plaintiff’s position, considering ‘all the
circumstances.’ ” Oncale , 523 U. S., at 81. But here,
the jury had before it considerable evidence that the track labor
duties were “by all accounts more arduous and dirtier”; that the
“forklift operator position required more qualifications, which is
an indication of prestige”; and that “the forklift operator
position was objectively considered a better job and the male
employees resented White for occupying it.” 364 F. 3d, at 803
(internal quotation marks omitted). Based on this record, a jury
could reasonably conclude that the reassignment of responsibilities
would have been materially adverse to a reasonable employee.

															   Second, Burlington argues that the 37-day
suspension without pay lacked statutory significance because
Burlington ultimately reinstated White with backpay. Burlington
says that “it defies reason to believe that Congress would have
considered a rescinded investigatory suspension with full back pay”
to be unlawful, particularly because Title VII, throughout much of
its history, provided no relief in an equitable action for victims
in White’s position. Brief for Petitioner 36.

															   We do not find Burlington’s last mentioned
reference to the nature of Title VII’s remedies convincing. After
all, throughout its history, Title VII has provided for injunctions
to “bar like discrimination in the future,” Albemarle Paper
Co. v. Moody, 422 U. S. 405 , 418
(1975) (internal quotation marks omitted), an important form of
relief. Pub. L. 88–352, §706(g), 78 Stat. 261, as amended, 42 U.
S. C. §2000e–5(g). And we have no reason to believe that a
court could not have issued an injunction where an employer
suspended an employee for retaliatory purposes, even if that
employer later provided backpay. In any event, Congress amended
Title VII in 1991 to permit victims of intentional discrimination
to recover compensatory (as White received here) and punitive
damages, concluding that the additional remedies were necessary to
“ ‘help make victims whole.’ ” West v. Gibson, 527
U. S. 212 , 219 (1999) (quoting H. R. Rep. No. 102–40, pt.
1, pp. 64–65 (1991)); see 42 U. S. C. §§1981a(a)(1), (b). We
would undermine the significance of that congressional judgment
were we to conclude that employers could avoid liability in these
circumstances.

															   Neither do we find convincing any claim of
insufficient evidence. White did receive backpay. But White and her
family had to live for 37 days without income. They did not know
during that time whether or when White could return to work. Many
reasonable employees would find a month without a paycheck to be a
serious hardship. And White described to the jury the physical and
emotional hardship that 37 days of having “no income, no money” in
fact caused. 1 Tr. 154 (“That was the worst Christmas I had out of
my life. No income, no money, and that made all of us feel bad. … I
got very depressed”). Indeed, she obtained medical treatment for
her emotional distress. A reasonable employee facing the choice
between retaining her job (and paycheck) and filing a
discrimination complaint might well choose the former. That is to
say, an indefinite suspension without pay could well act as a
deterrent, even if the suspended employee eventually received
backpay. Cf. Mitchell, 361 U. S., at 292 (“[I]t needs no
argument to show that fear of economic retaliation might often
operate to induce aggrieved employees quietly to accept substandard
conditions”). Thus, the jury’s conclusion that the 37-day
suspension without pay was materially adverse was a reasonable
one.

															IV

															   For these reasons, the judgment
of the Court of Appeals is affirmed.

															It is so ordered. ALITO, J., CONCURRING IN JUDGMENT BURLINGTON N. & S. F.&NBSP;R.&NBSP;CO. V. WHITE 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-259 BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, PETITIONER v. SHEILA WHITE

															on writ of certiorari to the united states court of
appeals for the sixth circuit

															[June 22, 2006]

															   Justice Alito, concurring in the
judgment.

															   I concur in the judgment, but I
disagree with the majority’s interpretation of the antiretaliation
provision of Title VII of the Civil Rights Act of 1964, 78 Stat.
257, §704(a), as amended, 42 U. S. C. §2000e–3(a). The
majority’s interpretation has no basis in the statutory language
and will, I fear, lead to practical problems.

															I

															   Two provisions of Title VII are
important here. Section 703(a) prohibits a broad range of
discriminatory employment practices.[ Footnote 1 ] Among other things, §703(a) makes it unlawful
for an employer “ 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.” 42 U. S. C. §2000e–2(a)(1) (emphasis
added).

															   A complementary and closely
related provision, §704(a), makes it unlawful to “discriminate
against” an employee for retaliatory purposes. Section 704(a)
states in pertinent part:

															   “It shall be an unlawful
employment practice for an employer to discriminate
against any of his employees or applicants for employment …
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.” 42 U.
S. C. §2000e–3(a) (emphasis added).

															   In this case, we must ascertain
the meaning of the term “discriminate” in §704(a). Two possible
interpretations are suggested by the language of §§703(a) and
704(a).

															   The first is the interpretation that
immediately springs to mind if §704(a) is read by
itself— i.e. , that the term “discriminate” in §704(a) means
what the term literally means, to treat differently. Respondent
staunchly defends this interpretation, which the majority does not
embrace, but this interpretation presents problems that are at
least sufficient to raise doubts about its correctness.
Respondent’s interpretation makes §703(a) narrower in scope than
§704(a) and thus implies that the persons whom Title VII is
principally designed to protect—victims of discrimination based on
race, color, sex, national origin, or religion—receive less
protection than victims of retaliation. In addition, respondent’s
interpretation “makes a federal case” out of any small difference
in the way an employee who has engaged in protected conduct is
treated. On respondent’s view, a retaliation claim must go to the
jury if the employee creates a genuine issue on such questions as
whether the employee was given any more or less work than others,
was subjected to any more or less supervision, or was treated in a
somewhat less friendly manner because of his protected activity.
There is reason to doubt that Congress meant to burden the federal
courts with claims involving relatively trivial differences in
treatment. See Oncale v. Sundowner Offshore Services,
Inc., 523 U. S.
75 , 81 (1998); Faragher v. Boca Raton, 524 U. S. 775 ,
786–788 (1998).

															   The other plausible interpretation, and the
one I favor, reads §§703(a) and 704(a) together. Under this
reading, “discriminat[ion]” under §704(a) means the discriminatory
acts reached by §703(a)—chiefly, discrimination “with respect to …
compensation, terms, conditions, or privileges of employment.” This
is not, admittedly, the most straightforward reading of the bare
language of §704(a), but it is a reasonable reading that harmonizes
§§703(a) and 704(a). It also provides an objective standard that
permits insignificant claims to be weeded out at the summary
judgment stage, while providing ample protection for employees who
are subjected to real retaliation.

															   The Courts of Appeals that have interpreted
§704(a) in this way state that it requires a materially adverse
employment action. See, e.g. , Von Gunten v. Maryland , 243 F. 3d 858, 865 (CA4 2001); Gupta v. Florida Bd. of Regents , 212 F. 3d 571, 587 (CA11
2000), cert. denied, 531 U. S. 1076 (2001); Robinson v. Pittsburgh , 120 F. 3d 1286, 1300
(CA3 1997). In Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 761–762
(1998), we “import[ed]” this test for use in a different context—to
define the term “tangible employment action,” a concept we used to
limit an employer’s liability for harassment carried out by its
supervisors. We explained that “[a] tangible employment action
constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits.” Id ., at 761.

															II

															   The majority does not adopt
either of the two interpretations noted above. In Part II–A of its
opinion, the majority criticizes the interpretation that harmonizes
§§703(a) and 704(a) as not sufficiently faithful to the language of
§704(a). Although we found the materially adverse employment action
test worthy of “import[ation]” in Ellerth , the majority
now argues that this test is too narrow because it permits
employers to take retaliatory measures outside the workplace. Ante , at 8–9 (citing Rochon v. Gonzales ,
438 F. 3d 1211, 1213 (CADC 2006); Berry v. Stevinson
Chevrolet , 74 F. 3d 980, 984, 986 (CA10 1996)). But the
majority’s concern is misplaced.

															   First, an employer who wishes to
retaliate against an employee for engaging in protected conduct is
much more likely to do so on the job. There are far more
opportunities for retaliation in that setting, and many forms of
retaliation off the job constitute crimes and are therefore
especially risky.

															   Second, the materially adverse employment
action test is not limited to on-the-job retaliation, as Rochon , one of the cases cited by the majority,
illustrates. There, a Federal Bureau of Investigation agent claimed
that the Bureau had retaliated against him by failing to provide
the off-duty security that would otherwise have been furnished. See
438 F. 3d, at 1213–1214. But, for an FBI agent whose life may
be threatened during off-duty hours, providing security easily
qualifies as a term, condition, or privilege of employment.
Certainly, if the FBI had a policy of denying protection to agents
of a particular race, such discrimination would be actionable under
§703(a).

															   But in Part II–B, rather than adopting the
more literal interpretation based on the language of §704(a) alone,
the majority instead puts that language aside and adopts a third
interpretation—one that has no grounding in the statutory language.
According to the majority, §704(a) does not reach all retaliatory
differences in treatment but only those retaliatory acts that “well
might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Ante , at 13 (internal
quotation marks omitted).

															   I see no sound basis for this test. The
language of §704(a), which employs the unadorned term
“discriminate,” does not support this test. The unstated premise of
the majority’s reasoning seems to be that §704(a)’s only purpose is
to prevent employers from taking those actions that are likely to
stop employees from complaining about discrimination, but this
unstated premise is unfounded. While surely one of the
purposes of §704(a) is to prevent employers from engaging in
retaliatory measures that dissuade employees from engaging in
protected conduct, there is no reason to suppose that this is
§704(a)’s only purpose. Indeed, the majority itself identifies
another purpose of the antiretaliation provision: “to prevent harm
to individuals” who assert their rights. Ante , at 8. Under
the majority’s test, however, employer conduct that causes harm to
an employee is permitted so long as the employer conduct is not so
severe as to dissuade a reasonable employee from making or
supporting a charge of discrimination.

															III

															   The practical consequences of the
test that the majority adopts strongly suggest that this test is
not what Congress intended.

															   First, the majority’s test leads
logically to perverse results. Under the majority’s test, §704(a)
reaches retaliation that well might dissuade an employee from
making or supporting “a charge of discrimination.” Ante ,
at 13 (internal quotation marks omitted). I take it that the phrase
“ a charge of discrimination” means the particular charge
that the employee in question filed,[ Footnote 2 ] and if that is the proper interpretation, the
nature of the discrimination that led to the filing of the charge
must be taken into account in applying §704(a). Specifically, the
majority’s interpretation logically implies that the degree of
protection afforded to a victim of retaliation is inversely
proportional to the severity of the original act of discrimination
that prompted the retaliation. A reasonable employee who is
subjected to the most severe discrimination will not easily be
dissuaded from filing a charge by the threat of retaliation; the
costs of filing the charge, including possible retaliation, will
have to be great to outweigh the benefits, such as preventing the
continuation of the discrimination in the future and obtaining
damages and other relief for past discrimination. Because the
possibility of relatively severe retaliation will not easily
dissuade this employee, the employer will be able to engage in
relatively severe retaliation without incurring liability under
§704(a). On the other hand, an employee who is subjected to a much
milder form of discrimination will be much more easily dissuaded.
For this employee, the costs of complaining, including possible
retaliation, will not have to be great to outweigh the lesser
benefits that might be obtained by filing a charge. These
topsy-turvy results make no sense.

															   Second, the majority’s conception of a
reasonable worker is unclear. Although the majority first states
that its test is whether a “reasonable worker” might well be
dissuaded, ante , at 13 (internal quotation marks omitted),
it later suggests that at least some individual characteristics of
the actual retaliation victim must be taken into account. The
majority comments that “the significance of any given act of
retaliation will often depend upon the particular circumstances,”
and provides the following illustration: “A schedule change in an
employee’s work schedule may make little difference to many
workers, but may matter enormously to a young mother with school
age children.” Ante , at 14.

															   This illustration suggests that the majority’s
test is not whether an act of retaliation well might dissuade the
average reasonable worker, putting aside all individual
characteristics, but, rather, whether the act well might dissuade a
reasonable worker who shares at least some individual
characteristics with the actual victim. The majority’s illustration
introduces three individual characteristics: age, gender, and
family responsibilities. How many more individual characteristics a
court or jury may or must consider is unclear.

															   Finally, the majority’s interpretation
contains a loose and unfamiliar causation standard. As noted, the
majority’s test asks whether an employer’s retaliatory act
“ well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Ante , at 13
(internal quotation marks omitted; emphasis added). Especially in
an area of the law in which standards of causation are already
complex, the introduction of this new and unclear standard is
unwelcome.

															   For these reasons, I would not adopt the
majority’s test but would hold that §704(a) reaches only those
discriminatory practices covered by §703(a).

															IV

															   Applying this interpretation, I
would affirm the decision of the Court of Appeals. The actions
taken against respondent—her assignment to new and substantially
less desirable duties and her suspension without pay—fall within
the definition of an “adverse employment action.”

															   With respect to respondent’s
reassignment, Ellerth specifically identified a
“reassignment with significantly different responsibilities” as a
“tangible employment action.” 524 U. S., at 761. Here, as the Court
of Appeals stated, “[i]n essence, … the reassignment was a
demotion.” 364 F. 3d 789, 803 (CA6 2004). The “new position
was by all accounts more arduous and ‘dirtier,’ ” ibid ., and petitioner’s sole stated rationale for the
reassignment was that respondent’s prior duties were better suited
for someone with greater seniority. This was virtually an admission
that respondent was demoted when those responsibilities were taken
away from her.

															   I would hold that respondent’s suspension
without pay likewise satisfied the materially adverse employment
action test. Accordingly, although I would hold that a plaintiff
asserting a §704(a) retaliation claim must show the same type of
materially adverse employment action that is required for a §703(a)
discrimination claim, I would hold that petitioner met that
standard in this case, and I, therefore, concur in the
judgment. Footnote 1 Section 703(a) states in pertinent part:

															   “It shall be an unlawful employment practice
for an employer—

															   “(1) 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; or

															   “(2) to limit, segregate, or classify his
employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex,
or national origin.” 42 U. S. C. §2000e–2(a) (emphasis
added). Footnote 2 The alternative interpretation—that “a
charge” does not mean the specific charge filed by the employee but
an average or generic charge—would be unworkable. Without gauging
the severity of the initial alleged discrimination, a jury cannot
possibly compare the costs and benefits of filing a charge and,
thus, cannot possibly decide whether the employer’s alleged
retaliatory conduct is severe enough to dissuade the filing of a
charge. A jury will have no way of assessing the severity of the
average alleged act of discrimination that leads to the filing of a
charge, and, therefore, if “a charge” means an average or generic
charge, the majority’s test will leave juries hopelessly at
sea.