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When is the Employer’s Action Adverse Enough to Be Illegal “Retaliation?”

Margherita M. Albarello

Most employment discrimination statutes contain “anti-retaliation” provisions.  Generally, the elements of retaliation claims are the same.  The employee must produce enough evidence for a reasonable jury to conclude that (1) she engaged in a statutorily protected activity; (2) the employer took a materially adverse action against her; and (3) there existed a but-for causal connection between the two.  See Burton v. Bd. of Regents of the Univ. of Wis. System, No. 16-2982 (7th Cir. March 17, 2017).

 Not every action is an “adverse action.” Not everything that makes an employee unhappy is an actionable adverse action.  Petty slights or minor annoyances that take place at work and that all employees experience are not actionable.  Rather, “an adverse action is one that a reasonable employee would find to be materially adverse such that the employee would be dissuaded from engaging in the protected activity.” Burton, supra.  For example, written reprimands without changes in the terms of conditions of the employee’s employment are not adverse employment actions.  For similar reasons, unfulfilled threats of discipline are not materially adverse actions.

The Burton Case.  In Burton, the plaintiff was hired as a tenure-track professor. In October 2012, a student reported to Burton that another professor had sexually harassed her.  Burton reported the incident to her department head and chair. The department chair then instituted a new policy altering the procedure for reporting student complaints, stated at a department meeting that the policy change was necessary because someone had overreacted by bringing a student complaint, and became less collegial towards Burton. He and the department head then objected to wording in a draft press release prepared by a funder of Burton’s proposed cybersecurity curriculum at the University, and they confronted  Burton about inaccuracies in materials she created for the proposed curriculum.  Regardless, Burton subsequently received the grant. In January 2013, Burton submitted her tenure application and it was granted. In August 2013, Burton filed a charge of sex discrimination and retaliation against the University claiming two adverse actions – that her reporting of the student’s complaint resulted in the department  (1) reprimanding her, and (2) withdrawing its support of the curriculum she was developing.  After Burton filed the charge, she was told that she might have been considered for the dean or department chair positions, but that she could not expect to advance if she continued to engage in litigious behavior.  Ultimately, Burton filed a lawsuit.

Like the district court, the 7th Circuit Court of Appeals found that neither of Burton’s professed adverse actions rose to the level of materiality necessary to form the basis of a retaliation claim.  The court found that even if the chair’s actions could be characterized as a reprimand, this would not be sufficient to be a materially adverse action.   The court also observed that the “reprimand” caused no consequences for Burton’s employment, noting that she received tenure just months after the incident.  The court found the same to be true about the disagreement related to the cybersecurity curriculum – no material adverse consequences followed.

But what about the University’s repeated pressuring of Burton to drop the discrimination charges and the statement that she could not advance if she was litigious?  The court found that since the pressure to drop the litigation resulted in no adverse action, the conduct ipso facto was not materially adverse.  Likewise, since Burton never applied for the positions of dean or department head, the court ruled that the statements caused her no injury.

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