Retaliation Against Kansas Employees Who Exercise Protected Rights Is Unlawful: Burlington Northern & Santa Fe Railway Co. v. White

Michael M. Shultz

Federal Laws Prohibit Retaliatory Conduct

Every federal law that prohibits discrimination in the workplace also makes it illegal for employers to retaliate against employees who exercise their rights under the law. Generally, these anti-retaliation provisions of federal employment discrimination laws make it illegal to retaliate against employees who protest what they reasonably believe to be illegal conduct in the workplace, as well as employees who provide information to government agencies concerning suspected discrimination at their place of employment. Kansas employees must know that they are protected from retaliation by federal law.

An example of federal law that makes retaliation unlawful is this provision from Title VII of the Civil Rights Act of 1964, the law that prohibits discrimination based upon race, ethnic background, religion and gender: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

What Constitutes Retaliatory Conduct Against a Kansas Employee?

One of the main issues that has confronted courts is what type of retaliatory conduct is actually made illegal. Does an employee have to be suspended without pay, discharged or even terminated for retaliation to occur? Is it enough that an employee is teased and feels embarrassed for having complained about discrimination? Or is the standard somewhere in the middle?

Recently, the United States Supreme Court got to answer these questions. And, in a rare pro-employee decision, it ruled that retaliatory conduct includes a broad range of activity that goes beyond suspensions, demotions and terminations. In Burlington Northern & Santa Fe Railway Co. v. White (No. 05-259), the Supreme Court stated that "the Courts of Appeals have come to different conclusions about the scope of the Act's anti-retaliation provision, particularly the reach of its phrase "discriminate against." Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?"

The Court concluded that the anti-retaliation provision of Title VII does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. "We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The Court went on to explain that "we speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth a general civility code for the American workplace." Thus, it is now clear that federal law prohibits any conduct by an employer, and this will include supervisors and others, that would cause the reasonable person to be chilled in the exercise of their rights. Trivial teasing or name-calling probably will not be enough under the law, but more significant harassment will be illegal. This is an extremely important decision for Kansas employees who believe that their employer has retaliated against them.

Damages for Retaliation

An employer who retaliates against a Kansas employee is liable under federal law for the damages that it causes, including any economic loss, out of pocket expenses for counseling and also including emotional distress, embarrassment and humiliation. If the employer's conduct is especially bad, the employer can become liable for punitive damages.

Filing a Charge of Retaliation

When a Kansas employee files a charge of discrimination with the Kansas Human Rights Commission or with the federal Equal Employment Opportunity Commission, the employee should be sure to mark the box for retaliation on the discrimination charge form and provide information to the agency if the retaliation has occurred by the time the charge is filed. If an employee does not do this, the Kansas employee might very well lose his or her rights under federal and state law.

When the retaliation occurs after the discrimination charge has been filed, it might not be necessary to file a new or amended charge, but the best practice is to do so anyway. Often, even though an employer is not found liable for having discriminated against an employee, it is found liable for having retaliated against the employee. It is important to keep in mind that the retaliation is based upon having engaged in protected activity, not upon being part of a protected class under the law–such as a minority or being female.


The Burlington Northern & Santa Fe Railway Co. v. White decision is a very important victory for all employees in the United States, and Kansas employees should be aware of this new decision. Any Kansas employee who believes that they have been the victim of retaliation should contact a competent Kansas employment law attorney.

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