Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)

1. The antiretaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. The language of the substantive and antiretaliation provi sions differ in important ways. The terms “hire,” “discharge,” “com [p. 54] pensation, terms, conditions, or privileges of employment,” “employ ment opportunities,” and “status as an employee” explicitly limit the substantive provision’s scope to actions that affect employment or alter workplace conditions. The antiretaliation provision has no such limit ing words. This Court presumes that, where words differ as they do here, Congress has acted intentionally and purposely. There is strong reason to believe that Congress intended the differences here, for the two provisions differ not only in language but also in purpose. The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their status, while the antiretalia tion provision seeks to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. To secure the first objective, Congress needed only to pro hibit employment-related discrimination. But this would not achieve the second objective because it would not deter the many forms that effective retaliation can take, therefore failing to fully achieve the anti retaliation provision’s purpose of “[m]aintaining unfettered access to statutory remedial mechanisms,” Robinson v. Shell Oil Co., 519 U. S. 337, 346. Thus, purpose reinforces what the language says, namely, that the antiretaliation provision is not limited to actions affecting em ployment terms and conditions. Neither this Court’s precedent nor the EEOC’s interpretations support a contrary conclusion. Nor is it anom alous to read the statute to provide broader protection for retaliation victims than for victims of discrimination. Congress has provided simi lar protection from retaliation in comparable statutes. And differences in the purpose of the two Title VII provisions remove any perceived “anomaly,” for they justify this difference in interpretation. Pp. 61–67.

2. The antiretaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant. This Court agrees with the Seventh and District of Colum bia Circuits that the proper formulation requires a retaliation plaintiff to show that the challenged action “well might have ‘dissuaded a reason able worker from making or supporting a charge of discrimination.’ ” Rochon v. Gonzales, 438 F. 3d 1211, 1219. The Court refers to material adversity to separate significant from trivial harms. The antiretalia tion provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms by prohibiting employer ac tions that are likely to deter discrimination victims from complaining to the EEOC, the courts, and employers. Robinson, supra, at 346. The Court refers to a reasonable employee’s reactions because the provi sion’s standard for judging harm must be objective, and thus judicially administrable. The standard is phrased in general terms because the [p. 55] significance of any given act of retaliation may depend upon the particu lar circumstances. Pp. 67–70.

Deputy Solicitor General Garre argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Clement, Assistant Attorney Gen [p. 56] eral Kim, Acting Assistant Attorney General Katsas, Irving L. Gornstein, Marleigh D. Dover, and Stephanie R. Marcus.

A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should trans port 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 [p. 59] suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

Title VII’s antiretaliation provision forbids employer ac tions that “discriminate against” an employee (or job ap plicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or partici pated 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. Bir mingham Bd. of Ed., 544 U. S. 167, 174 (2005); Price Water [p. 60] house v. Hopkins, 490 U. S. 228, 244 (1989) (plurality opin ion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different con clusions about whether the challenged action has to be em ployment or workplace related and about how harmful that action must be to constitute retaliation.

Other Circuits have not so limited the scope of the provi sion. 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.” Wash ington 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 [p. 61] 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 (2000). The concurring judges below would have applied this last mentioned standard. 364 F. 3d, at 809 (opinion of Clay, J.).

The italicized 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 provi sion to actions that affect employment or alter the condi tions of the workplace. No such limiting words appear in the antiretaliation provision. Given these linguistic differ ences, 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 [p. 63] 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 ex clusion.’ ” Russello v. United States, 464 U. S. 16, 23 (1983).

But one cannot secure the second objective by focusing only upon employer actions and harm that concern employ ment and the workplace. Were all such actions and harms eliminated, the antiretaliation 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 work place. See, e. g., Rochon, 438 F. 3d, at 1213 (Federal Bureau of Investigation retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death [p. 64] 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 antiretaliation provision’s “primary purpose,” namely, “[m]aintaining unfet tered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997).

Our precedent does not compel a contrary conclusion. In deed, we have found no case in this Court that offers peti tioner 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 in volve “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 em ployer should be held vicariously liable (without an affirm ative 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 environ ment claims into two categories, one in which the employer [p. 65] 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 antidiscrimination 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 resolu tion of the vicarious liability issue”). And Ellerth did not mention Title VII’s antiretaliation provision at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the antiretaliation provision ought to con tain. But it does not compel acceptance of their view.

Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the antiretaliation 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 discrim inatory 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 [p. 66] 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 pro tected activity”). And the EEOC 1998 Manual, which offers the Commission’s only direct statement on the question of whether the antiretaliation provision is limited to the same employment-related activity covered by the antidis crimination provision, answers that question in the nega tive—directly contrary to petitioner’s reading of the Act. Ibid.

Finally, we do not accept petitioner’s and the 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 com parable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the pri mary 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. Com pare 29 U. S. C. § 158(a)(3) (substantive provision prohibiting employer “discrimination in regard to . . . any term or condi tion of employment to encourage or discourage membership in any labor organization”) with § 158(a)(4) (retaliation pro vision 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 antiretaliation provision to “prohibi[t] a wide variety of employer conduct that is intended to re strain, or that has the likely effect of restraining, employees [p. 67] in the exercise of protected activities,” including the retal iatory 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 “ ‘com pletely free from coercion against reporting ’ ” unlawful practices).

The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Ap peals 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. [p. 68] 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 Wash ington, 420 F. 3d, at 662).

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 ad ministrable. It avoids the uncertainties and unfair discrep ancies that can plague a judicial effort to determine a plain [p. 69] tiff ’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) (hos tile work environment doctrine).

Finally, we note that contrary to the claim of the concur rence, 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 78 (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 materi ality of the challenged action and the perspective of a reason [p. 70] able person in the plaintiff ’s position, we believe this stand ard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from com plaining or assisting in complaints about discrimination.

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 respon sibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage [p. 71] an employee such as White from bringing discrimination charges would be to insist that she spend more time per forming 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” exam ple 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 order ing an employee “to do an unpleasant work assignment in retaliation” for filing racial discrimination complaint); Dec. No. 74–77, CCH EEOC Decisions (1983) ¶ 6417 (1974) (“Em ployers have been enjoined” under Title VII “from imposing unpleasant work assignments upon an employee for filing charges”).

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 [p. 72] back pay” to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equi table action for victims in White’s position. Brief for Petitioner 36.

Neither do we find convincing any claim of insufficient evi dence. 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. Brief for Respondent 4, n. 13 (“ ‘That was the worst Christ mas 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. [p. 73] 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 substand ard conditions”). Thus, the jury’s conclusion that the 37 day suspension without pay was materially adverse was a reasonable one.

Two provisions of Title VII are important here. Section 703(a) prohibits a broad range of discriminatory employment practices.1 Among other things, § 703(a) makes it unlawful [p. 74] 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, reli gion, sex, or national origin.” 42 U. S. C. § 2000e–2(a)(1) (emphasis added).

The first is the interpretation that immediately springs to mind if § 704(a) is read by itself—i. e., that the term “discrim inate” in § 704(a) means what the term literally means, to treat differently. Respondent staunchly defends this inter pretation, which the majority does not embrace, but this in terpretation presents problems that are at least sufficient to raise doubts about its correctness. Respondent’s interpre tation 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 protec tion than victims of retaliation. In addition, respondent’s interpretation “makes a federal case” out of any small differ [p. 75] ence 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 treat ment. 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 Courts of Appeals that have interpreted § 704(a) in this way state that it requires a materially adverse employ ment 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 con text—to define the term “tangible employment action,” a concept we used to limit an employer’s liability for harass ment carried out by its supervisors. We explained that “[a] tangible employment action constitutes a significant change [p. 76] in employment status, such as hiring, firing, failing to pro mote, reassignment with significantly different responsibil ities, or a decision causing a significant change in benefits.” Id., at 761.

But in Part II–B, rather than adopting the more literal interpretation based on the language of § 704(a) alone, the [p. 77] 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 retal iatory acts that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimina tion.” Ante, at 68 (internal quotation marks omitted).

First, the majority’s test leads logically to perverse re sults. Under the majority’s test, § 704(a) reaches retaliation that well might dissuade an employee from making or sup porting “a charge of discrimination.” Ante, at 68 (internal quotation marks omitted). I take it that the phrase “a charge of discrimination” means the particular charge that [p. 78] the employee in question filed,2 and if that is the proper in terpretation, 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 possi bility of relatively severe retaliation will not easily dissuade this employee, the employer will be able to engage in rela tively 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 complain ing, 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 68 (internal quotation marks omitted), it later sug [p. 79] gests that at least some individual characteristics of the ac tual retaliation victim must be taken into account. The ma jority comments that “the significance of any given act of retaliation will often depend upon the particular circum stances,” and provides the following illustration: “A schedule change in an employee’s work schedule may make little dif ference to many workers, but may matter enormously to a young mother with school-age children.” Ante, at 69.