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U.S. Supreme Court Broadens Employee Protection Against Retaliation


In a decision likely to accelerate the increase in retaliation claims filed by employees, the United States Supreme Court yesterday issued a ruling broadening the definition of retaliation under federal law.  In Burlington Northern & Santa Fe Railway Company v. White, the Court considered a case in which an employee who complained about sexual harassment was subsequently suspended and transferred to a position with comparable pay but less desirable duties.  The employee sued under federal anti-discrimination law, claiming that the company’s actions against her constituted unlawful retaliation.  In upholding the employee’s claim, the Court broadly defined retaliation to include any action that might tend to discourage employees from engaging in protected activity, even if it does not directly affect the workplace.

It is important to note that this decision applies only to claims under Title VII, the federal law prohibiting discrimination.  Most claims against California employers are filed under California law, the Fair Employment and Housing Act, which defines retaliation more narrowly than today’s Supreme Court decision.  Nevertheless, because employees may still file claims under federal law, it is important for employers to prevent retaliation, in any form, against employees who assert claims or engage in other protected behavior.

E. George Joseph is a partner in the Irvine office of Nossaman Guthner Knox & Elliott LLP.  He specializes in complex business litigation with an emphasis in the area of employment.  George can be reached at (949) 477-7636 or

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