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Workplace Slights Not Retaliation under Title VII

    Client Alerts
  • May 02, 2008


In its 2006 Burlington Northern decision, the U.S. Supreme Court substantially lowered the bar for employees alleging retaliation under Title VII. The Court said that a number of adverse actions short of termination or demotion could be retaliatory if they would dissuade a reasonable person from pursuing their legal rights. Since Burlington Northern, lower federal courts have analyzed a number of factual situations to determine whether they meet this new legal threshold.

In Recio v. Creighton University, a new decision from the Eighth Circuit Court of Appeals, the court concluded that alleged slights by the university and co-workers did not rise to the level of a material adverse action under Title VII. The plaintiff was a professor who was placed on probation by the university after a fellow instructor filed a sexual harassment complaint against her. She subsequently filed an EEOC Charge, alleging that the probation was the result of national origin discrimination by the university.

The plaintiff subsequently filed a second EEOC Charge, this time alleging retaliation by Creighton. In her Charge and following suit, the plaintiff claimed that the university had retaliated against her by delaying her probation while she was teaching in Spain, changing the hours of her classes, allowing “shunning” by fellow faculty members, keeping the temperature in her office too cold, denying her the opportunity to teach summer classes and additional study programs in Spain, and related issues.

The Eighth Circuit rejected these claims, affirming summary judgment for Creighton. The court found the plaintiff’s complaints regarding changes in her work duties to be factually inaccurate, or explainable for reasons unrelated to her complaints.  In terms of the remaining allegations, the Eighth Circuit concluded that these were trivial harms that do not rise to the level of retaliation, even under the relaxed Burlington Northern standard.  Minor changes in working conditions or petty slights in the workplace do not have enough of a negative impact on an employee’s work to rise to the level of retaliation under Title VII.

In order to state an actionable retaliation claim, the plaintiff must show a clearer nexus between the alleged retaliatory activity and some meaningful impact on their career.