In its Burlington Northern decision, the U.S. Supreme Court declared that adverse actions by employers that deter employees from complaining to the EEOC constitute illegal retaliation under Title VII. Ever since this decision, lower federal courts have struggled with defining what adverse actions fall under this test. Last month in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that an employer telling a complaining employee to "lay low" was retaliatory.

Maron v. Va. Polytechnic Inst. & State Univ. involved sex discrimination and Equal Pay Act claims by a university fundraiser. She alleged that after making internal complaints about her treatment, her supervisor at Virginia Tech told her that if she wanted to keep her job, she needed to become invisible and "stay off the radar." The district court granted summary judgment to Virginia Tech on this claim, concluding that the alleged comments were no more than petty slights.

The Fourth Circuit held a different view, reversing the dismissal and remanding the retaliation claim for trial. The court concluded that the administrator's alleged warnings would have dissuaded a reasonable employee from making further internal complaints or from reporting the matter to the EEOC over fears of losing her job, even if they resulted in no tangible action against her. The court noted that the plaintiff had received a written warning during this time period from the supervisor in question for sending her a personal email, conduct that would not objectively provoke such a reaction.

This case demonstrates that the previously employer-friendly Fourth Circuit has become considerably less predictable in its decisions. In recent years, the court has taken a broader view of employee rights, and of the degree of proof required for harassment, discrimination and retaliation claims to proceed to a jury for trial.