In last year’s Burlington Northern decision, the U.S. Supreme Court lowered the standard for retaliation claims under Title VII. The Court concluded that an employer’s disciplinary measures taken against a complaining employee can be retaliatory if it would dissuade a reasonable person from complaining to the EEOC. In its decision, the Supreme Court never stated whether the same standard applies to initial claims of discrimination. In other words, can some of the lower level disciplinary measures found to be retaliatory in Burlington Northern also be deemed adverse actions for purposes of a discrimination claim? A new Eleventh Circuit Court of Appeals case may offer employers some comfort that not every negative effect on a protected employee will be deemed an adverse action. The suit was filed by an African-American Georgia Department of Transportation employee who alleged that he received a written warning for misuse of the computer system, while similarly situated White employees did not.
The Eleventh Circuit stated that Burlington Northern only applies in the retaliation context, and not to an underlying discrimination claim. To violate Title VII, an employer’s adverse action must create a serious and material change in the terms and conditions of employment. In this case, the written warning did not result in any tangible harm to the plaintiff. He lost no pay, benefits, seniority, or other measurable aspect to his employment. This case should not be read as a blanket statement that disciplinary warnings will never constitute an adverse action under Title VII. However, at least one federal appellate court has refused to expand Burlington Northern beyond the retaliation area.