(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BURLINGTON NORTHERN & SANTA FE RAILWAY
CO. v. WHITE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 05–259. Argued April 17, 2006—Decided June 22, 2006
Title VII of the Civil Rights Act of 1964 forbids employment discrimina
tion based on “race, color, religion, sex, or national origin,” 42 U. S. C.
§2000e–2(a), and its anti-retaliation provision forbids “discrimi
nat[ion] against” an employee or job applicant who, inter alia, has
“made a charge, testified, assisted, or participated in” a Title VII pro
ceeding or investigation, §2000e–3(a). Respondent White, the only
woman in her department, operated the forklift at the Tennessee
Yard of petitioner Burlington Northern & Santa Fe Railway Co. (Bur
lington). After she complained, her immediate supervisor was disci
plined for sexual harassment, but she was removed from forklift duty
to standard track laborer tasks. She filed a complaint with the Equal
Employment Opportunity Commission (EEOC), claiming that the re
assignment was unlawful gender discrimination and retaliation for
her complaint. Subsequently, she was suspended without pay for in
subordination. Burlington later found that she had not been insub
ordinate, reinstated her, and awarded her backpay for the 37 days
she was suspended. The suspension led to another EEOC retaliation
charge. After exhausting her administrative remedies, White filed an
action against Burlington in federal court claiming, as relevant here,
that Burlington’s actions in changing her job responsibilities and
suspending her for 37 days amounted to unlawful retaliation under
Title VII. A jury awarded her compensatory damages. In affirming,
the Sixth Circuit applied the same standard for retaliation that it
applies to a substantive discrimination offense, holding that a re
taliation plaintiff must show an “adverse employment action,” de
fined as a “materially adverse change in the terms and conditions” of
employment. The Circuits have come to different conclusions about
2 BURLINGTON N. & S. F. R. CO. v. WHITE
Syllabus
whether the challenged action has to be employment or workplace re
lated and about how harmful that action must be to constitute re
taliation.
Held:
1. The anti-retaliation 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 anti-retaliation
provisions differ in important ways. The terms “hire,” “discharge,”
“compensation, terms, conditions, or privileges of employment,” “em
ployment opportunities,” and “status as an employee” explicitly limit
the substantive provision’s scope to actions that affect employment or
alter workplace conditions. The anti-retaliation provision has no
such limiting 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 differ
ences here, for the two provisions differ not only in language but also
in purpose. The anti-discrimination provision seeks a workplace
where individuals are not discriminated against because of their
status, while the anti-retaliation provision seeks to prevent an em
ployer from interfering with an employee’s efforts to secure or ad
vance enforcement of the Act’s basic guarantees. To secure the first
objective, Congress needed only to prohibit employment-related dis
crimination. 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 pur
pose 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 anti-
retaliation provision is not limited to actions affecting employment
terms and conditions. Neither this Court’s precedent nor the EEOC’s
interpretations support a contrary conclusion. Nor is it anomalous to
read the statute to provide broader protection for retaliation victims
than for victims of discrimination. Congress has provided similar
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. 6–12.
2. The anti-retaliation 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 Co
lumbia Circuits that the proper formulation requires a retaliation
plaintiff to show that the challenged action “well might have ‘dis
suaded a reasonable 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
Cite as: 548 U. S. ____ (2006) 3
Syllabus
harms. The anti-retaliation provision seeks to prevent employer in
terference with “unfettered access” to Title VII’s remedial mecha
nisms by prohibiting employer actions that are likely to deter dis
crimination 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 provision’s standard for judging
harm must be objective, and thus judicially administrable. The stan
dard is phrased in general terms because the significance of any
given act of retaliation may depend upon the particular circum
stances. Pp. 12–15.
3. Applying the standard to the facts of this case, there was a suffi
cient evidentiary basis to support the jury’s verdict on White’s re
taliation claim. Contrary to Burlington’s claim, a reassignment of
duties can constitute retaliatory discrimination where both the for
mer and present duties fall within the same job description. Almost
every job category involves some duties that are less desirable than
others. That is presumably why the EEOC has consistently recog
nized retaliatory work assignments as forbidden retaliation. Here,
the jury had considerable evidence that the track laborer duties were
more arduous and dirtier than the forklift operator position, and that
the latter position was considered a better job by male employees who
resented White for occupying it. Based on this record, a jury could
reasonably conclude that the reassignment would have been materi
ally adverse to a reasonable employee. Burlington also argues that
the 37-day suspension without pay lacked statutory significance be
cause White was reinstated with backpay. The significance of the
congressional judgment that victims of intentional discrimination can
recover compensatory and punitive damages to make them whole
would be undermined if employers could avoid liability in these cir
cumstances. Any insufficient evidence claim is unconvincing. White
received backpay, but many reasonable employees would find a
month without pay a serious hardship. White described her physical
and emotional hardship to the jury, noting that she obtained medical
treatment for emotional distress. An indefinite suspension without
pay could well act as a deterrent to the filing of a discrimination
complaint, even if the suspended employee eventually receives back-
pay. Thus, the jury’s conclusion that the suspension was materially
adverse was reasonable. Pp. 15–18.
364 F. 3d 789, affirmed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG,
JJ., joined. ALITO, J., filed an opinion concurring in the judgment.
Cite as: 548 U. S. ____ (2006) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–259
_________________
BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, PETITIONER v. SHEILA WHITE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 22, 2006]
JUSTICE BREYER delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 forbids employ
ment discrimination against “any individual” based on
that individual’s “race, color, religion, sex, or national
origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended,
42 U. S. C. §2000e–2(a). A separate section of the Act—its
anti-retaliation provision—forbids an employer from
“discriminat[ing] against” an employee or job applicant
because that individual “opposed any practice” made
unlawful by Title VII or “made a charge, testified, as
sisted, or participated in” a Title VII proceeding or inves
tigation. §2000e–3(a).
The Courts of Appeals have come to different conclu
sions about the scope of the Act’s anti-retaliation provi
sion, particularly the reach of its phrase “discriminate
against.” Does that provision confine actionable retalia
tion to activity that affects the terms and conditions of
employment? And how harmful must the adverse actions
be to fall within its scope?
We conclude that the anti-retaliation provision does not
confine the actions and harms it forbids to those that are
2 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
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 rea
sonable worker from making or supporting a charge of
discrimination.
I
A
This case arises out of actions that supervisors at peti
tioner Burlington Northern & Santa Fe Railway Company
took against respondent Sheila White, the only woman
working in the Maintenance of Way department at Bur
lington’s Tennessee Yard. In June 1997, Burlington’s
roadmaster, Marvin Brown, interviewed White and ex
pressed interest in her previous experience operating
forklifts. Burlington hired White as a “track laborer,” a
job that involves removing and replacing track compo
nents, transporting track material, cutting brush, and
clearing litter and cargo spillage from the right-of-way.
Soon after White arrived on the job, a co-worker who had
previously operated the forklift chose to assume other
responsibilities. Brown immediately assigned White to
operate the forklift. While she also performed some of the
other track laborer tasks, operating the forklift was
White’s primary responsibility.
In September 1997, White complained to Burlington
officials that her immediate supervisor, Bill Joiner, had
repeatedly told her that women should not be working in
the Maintenance of Way department. Joiner, White said,
had also made insulting and inappropriate remarks to her
in front of her male colleagues. After an internal investi
gation, Burlington suspended Joiner for 10 days and
ordered him to attend a sexual-harassment training ses
Cite as: 548 U. S. ____ (2006) 3
Opinion of the Court
sion.
On September 26, Brown told White about Joiner’s
discipline. At the same time, he told White that he was
removing her from forklift duty and assigning her to per
form only standard track laborer tasks. Brown explained
that the reassignment reflected co-worker’s complaints
that, in fairness, a “ ‘more senior man’ ” should have the
“less arduous and cleaner job” of forklift operator. 364
F. 3d 789, 792 (CA6 2004) (case below).
On October 10, White filed a complaint with the Equal
Employment Opportunity Commission (EEOC or Commis
sion). She claimed that the reassignment of her duties
amounted to unlawful gender-based discrimination and
retaliation for her having earlier complained about Joiner.
In early December, White filed a second retaliation charge
with the Commission, claiming that Brown had placed her
under surveillance and was monitoring her daily activi
ties. That charge was mailed to Brown on December 8.
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 proce
dures. 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 suspended. White filed an additional re
taliation charge with the EEOC based on the suspension.
B
After exhausting administrative remedies, White filed
this Title VII action against Burlington in federal court.
As relevant here, she claimed that Burlington’s actions—
(1) changing her job responsibilities, and (2) suspending
4 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
her for 37 days without pay—amounted to unlawful re
taliation in violation of Title VII. §2000e–3(a). A jury
found in White’s favor on both of these claims. It awarded
her $43,500 in compensatory damages, including $3,250 in
medical expenses. The District Court denied Burlington’s
post-trial motion for judgment as a matter of law. See
Fed. Rule Civ. Proc. 50(b).
Initially, a divided Sixth Circuit panel reversed the
judgment and found in Burlington’s favor on the retalia
tion claims. 310 F. 3d 443 (2002). The full Court of Ap
peals vacated the panel’s decision, however, and heard the
matter en banc. The court then affirmed the District
Court’s judgment in White’s favor on both retaliation
claims. While all members of the en banc court voted to
uphold the District Court’s judgment, they differed as to
the proper standard to apply. Compare 364 F. 3d, at 795–
800, with id., at 809 (Clay, J., concurring).
II
Title VII’s anti-retaliation provision forbids employer
actions that “discriminate against” an employee (or job
applicant) because he has “opposed” a practice that Title
VII forbids or has “made a charge, testified, assisted, or
participated 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 Jack
son v. Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005);
Price Waterhouse v. Hopkins, 490 U. S. 228, 244 (1989)
(plurality opinion); see also 4 Oxford English Dictionary 758
(2d ed. 1989) (def. 3b). But different Circuits have come to
different conclusions about whether the challenged action
has to be employment or workplace related and about how
harmful that action must be to constitute retaliation.
Some Circuits have insisted upon a close relationship
between the retaliatory action and employment. The
Cite as: 548 U. S. ____ (2006) 5
Opinion of the Court
Sixth Circuit majority in this case, for example, said that a
plaintiff must show an “adverse employment action,”
which it defined as a “materially adverse change in the
terms and conditions” of employment. 364 F. 3d, at 795
(internal quotation marks omitted). The Sixth Circuit has
thus joined those Courts of Appeals that apply the same
standard for retaliation that they apply to a substantive
discrimination offense, holding that the challenged action
must “resul[t] in an adverse effect on the ‘terms, condi
tions, or benefits’ of employment.” Von Gunten v. Mary
land, 243 F. 3d 858, 866 (CA4 2001); see Robinson v.
Pittsburgh, 120 F. 3d 1286, 1300 (CA3 1997). The Fifth
and the Eighth Circuits have adopted a more restrictive
approach. They employ an “ultimate employment deci
sio[n]” standard, which limits actionable retaliatory con
duct to acts “ ‘such as hiring, granting leave, discharging,
promoting, and compensating.’ ” Mattern v. Eastman
Kodak Co., 104 F. 3d 702, 707 (CA5 1997); see Manning v.
Metropolitan Life Ins. Co., 127 F. 3d 686, 692 (CA8 1997).
Other Circuits have not so limited the scope of the pro
vision. The Seventh and the District of Columbia Circuits
have said that the plaintiff must show that the “em
ployer’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 reason
able worker from making or supporting a charge of dis
crimination.” Washington 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 guidance, has said that the plain
tiff 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 pro
tected activity.’ ” Ray v. Henderson, 217 F. 3d 1234, 1242–
1243 (CA9 2000). The concurring judges below would
have applied this last mentioned standard. 364 F. 3d, at
6 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
809 (opinion of Clay, J.).
We granted certiorari to resolve this disagreement. To
do so requires us to decide whether Title VII’s anti-
retaliation provision forbids only those employer actions
and resulting harms that are related to employment or the
workplace. And we must characterize how harmful an act
of retaliatory discrimination must be in order to fall
within the provision’s scope.
A
Petitioner and the Solicitor General both argue that the
Sixth Circuit is correct to require a link between the chal
lenged retaliatory action and the terms, conditions, or
status of employment. They note that Title VII’s substan
tive anti-discrimination provision protects an individual
only from employment-related discrimination. They add
that the anti-retaliation provision should be read in pari
materia with the anti-discrimination provision. And they
conclude that the employer actions prohibited by the anti-
retaliation provision should similarly be limited to conduct
that “affects the employee’s ‘compensation, terms, condi
tions, or privileges of employment.’ ” Brief for United
States as Amicus Curiae 13 (quoting §2000e–2(a)(1)); see
Brief for Petitioner 13 (same).
We cannot agree. The language of the substantive
provision differs from that of the anti-retaliation provision
in important ways. Section 703(a) sets forth Title VII’s
core anti-discrimination provision in the following terms:
“It shall be an unlawful employment practice for an
employer—
“(1) to fail or refuse to hire or to discharge any indi
vidual, or otherwise to discriminate against any indi
vidual with respect to his compensation, terms, condi
tions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national ori
gin; or
Cite as: 548 U. S. ____ (2006) 7
Opinion of the Court
“(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin.” §2000e–
2(a) (emphasis added).
Section 704(a) sets forth Title VII’s anti-retaliation
provision in the following terms:
“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment . . . because he has op
posed 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.” §2000e–3(a) (emphasis
added).
The underscored 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 provision to actions that affect employment or alter
the conditions of the workplace. No such limiting words
appear in the anti-retaliation provision. Given these
linguistic differences, 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 in
tended its different 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 exclusion.’ ” Russello v. United States,
8 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
464 U. S. 16, 23 (1983).
There is strong reason to believe that Congress intended
the differences that its language suggests, for the two
provisions differ not only in language but in purpose as
well. The anti-discrimination provision seeks a workplace
where individuals are not discriminated against because
of their racial, ethnic, religious, or gender-based status.
See McDonnell Douglas Corp. v. Green, 411 U. S. 792,
800–801 (1973). The anti-retaliation provision seeks to
secure that primary objective by preventing an employer
from interfering (through retaliation) with an employee’s
efforts to secure or advance enforcement of the Act’s basic
guarantees. The substantive provision seeks to prevent
injury to individuals based on who they are, i.e., their
status. The anti-retaliation provision seeks to prevent
harm to individuals based on what they do, i.e., their
conduct.
To secure the first objective, Congress did not need to
prohibit anything other than employment-related dis
crimination. The substantive provision’s basic objective of
“equality of employment opportunities” and the elimina
tion of practices that tend to bring about “stratified job
environments,” id., at 800, would be achieved were
all employment-related discrimination miraculously
eliminated.
But one cannot secure the second objective by focusing
only upon employer actions and harm that concern em
ployment and the workplace. Were all such actions and
harms eliminated, the anti-retaliation provision’s objective
would not be achieved. An employer can effectively retali
ate against an employee by taking actions not directly
related to his employment or by causing him harm outside
the workplace. See, e.g., Rochon v. Gonzales, 438 F. 3d, at
1213 (FBI retaliation against employee “took the form of
the FBI’s refusal, contrary to policy, to investigate death
threats a federal prisoner made against [the agent] and
Cite as: 548 U. S. ____ (2006) 9
Opinion of the Court
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 em
ployee 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
anti-retaliation provision’s “primary purpose,” namely,
“[m]aintaining unfettered access to statutory remedial
mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337,
346 (1997).
Thus, purpose reinforces what language already indi
cates, namely, that the anti-retaliation provision, unlike
the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employ
ment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. ___
(2006) (slip op., at 14) (rejecting statutory construction
that would “trea[t] venue and subject-matter jurisdiction
prescriptions as in pari materia” because doing so would
“overloo[k] the discrete offices of those concepts”).
Our precedent does not compel a contrary conclusion.
Indeed, we have found no case in this Court that offers
petitioner or the United States significant support. Bur
lington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), as
petitioner notes, speaks of a Title VII requirement that
violations involve “tangible employment action” such as
“hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision caus
ing 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 employer should be held
vicariously liable (without an affirmative defense) for the
acts of supervisors. Id., at 760; see also Pennsylvania
State Police v. Suders, 542 U. S. 129, 143 (2004) (explain
ing holdings in Ellerth and Faragher v. Boca Raton, 524
U. S. 775 (1998), as dividing hostile work environment
10 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
claims into two categories, one in which the employer is
strictly liable because a tangible employment action is
taken and one in which the employer can make an af
firmative defense). Ellerth did not discuss the scope of the
general anti-discrimination 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 resolution of the vicarious liability issue”). And
Ellerth did not mention Title VII’s anti-retaliation provi
sion at all. At most, Ellerth sets forth a standard that
petitioner and the Solicitor General believe the anti-
retaliation provision ought to contain. But it does not
compel acceptance of their view.
Nor can we find significant support for their view in the
EEOC’s interpretations of the provision. We concede that
the EEOC stated in its 1991 and 1988 Compliance Manu
als that the anti-retaliation provision is limited to “ad
verse employment-related action.” 2 EEOC Compliance
Manual §614.1(d), p. 614–5 (1991) (hereinafter EEOC
1991 Manual); EEOC Compliance Manual §614.1(d), p.
614–5 (1988) (hereinafter EEOC 1988 Manual). But in
those same manuals the EEOC lists the “[e]ssential
[e]lements” of a retaliation claim along with language
suggesting a broader interpretation. EEOC 1991 Manual
§614.3(d), pp. 614–8 to 614–9 (complainant must show
“that (s)he was in some manner subjected to adverse
treatment by the respondent because of the protest or
opposition”); EEOC 1988 Manual §614.3(d), pp. 614–8 to
614–9 (same).
Moreover, both before and after publication of the 1991
and 1988 manuals, the EEOC similarly expressed a broad
interpretation of the anti-retaliation 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 discrimi
Cite as: 548 U. S. ____ (2006) 11
Opinion of the Court
natory 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 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 protected activity”). And the EEOC 1998
Manual, which offers the Commission’s only direct state
ment on the question of whether the anti-retaliation pro
vision is limited to the same employment-related activity
covered by the anti-discrimination provision, answers that
question in the negative—directly contrary to petitioner’s
reading of the Act. Ibid.
Finally, we do not accept the petitioner’s and 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 comparable statutes without any judicial
suggestion that those provisions are limited to the conduct
prohibited by the primary 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. Compare 29 U. S. C. §158(a)(3)
(substantive provision prohibiting employer “discrimina
tion in regard to . . . any term or condition of employment
to encourage or discourage membership in any labor or
ganization”) with §158(a)(4) (retaliation provision 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
12 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S.
731, 740 (1983) (construing anti-retaliation provision to
“prohibi[t] a wide variety of employer conduct that is
intended to restrain, or that has the likely effect of re
straining, employees in the exercise of protected activi
ties,” including the retaliatory 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 en
sure that employees are “ ‘completely free from coercion
against reporting’ ” unlawful practices).
In any event, as we have explained, differences in the
purpose of the two provisions remove any perceived
“anomaly,” for they justify this difference of interpretation.
See supra, at 8–9. Title VII depends for its enforcement
upon the cooperation of employees who are willing to file
complaints and act as witnesses. “Plainly, effective en
forcement could thus only be expected if employees felt
free to approach officials with their grievances.” Mitchell
v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960).
Interpreting the anti-retaliation provision to provide broad
protection from retaliation helps assure the cooperation
upon which accomplishment of the Act’s primary objective
depends.
For these reasons, we conclude that Title VII’s substan
tive provision and its anti-retaliation provision are not
coterminous. The scope of the anti-retaliation provision
extends beyond workplace-related or employment-related
retaliatory acts and harm. We therefore reject the stan
dards applied in the Courts of Appeals that have treated
the anti-retaliation provision as forbidding the same con
duct prohibited by the anti-discrimination provision and
that have limited actionable retaliation to so-called “ulti
mate employment decisions.” See supra, at 5.
B
The anti-retaliation provision protects an individual not
Cite as: 548 U. S. ____ (2006) 13
Opinion of the Court
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.
In our view, a plaintiff must show that a reasonable em
ployee 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 Washington, 420 F. 3d, at 662).
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.” Oncale v. Sundowner
Offshore Services, Inc., 523 U. S. 75, 80 (1998); see
Faragher, 524 U. S., at 788 (judicial standards for sexual
harassment must “filter out complaints attacking ‘the
ordinary tribulations of the workplace, such as the spo
radic use of abusive language, gender-related jokes, and
occasional teasing’ ”). An employee’s decision to report
discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often
take place at work and that all employees experience. See
1 B. Lindemann & P. Grossman, Employment Discrimina
tion Law 669 (3d ed. 1996) (noting that “courts have held
that personality conflicts at work that generate antipathy”
and “ ‘snubbing’ by supervisors and co-workers” are not
actionable under §704(a)). The anti-retaliation provision
seeks to prevent employer interference with “unfettered
access” to Title VII’s remedial mechanisms. Robinson, 519
U. S., at 346. It does so by prohibiting employer actions
that are likely “to deter victims of discrimination from
complaining to the EEOC,” the courts, and their employ
ers. Ibid. And normally petty slights, minor annoyances,
14 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
and simple lack of good manners will not create such
deterrence. See 2 EEOC 1998 Manual §8, p. 8–13.
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
administrable. It avoids the uncertainties and unfair
discrepancies that can plague a judicial effort to determine
a plaintiff’s unusual subjective feelings. We have empha
sized 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) (hostile work environment doctrine).
We phrase the standard in general terms because the
significance of any given act of retaliation will often de
pend upon the particular circumstances. Context matters.
“The real social impact of workplace behavior often de
pends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully cap
tured by a simple recitation of the words used or the
physical acts performed.” Oncale, supra, at 81–82. A
schedule change in an employee’s work schedule may
make little difference to many workers, but may matter
enormously to a young mother with school age children.
Cf., e.g., Washington, supra, at 662 (finding flex-time
schedule critical to employee with disabled child). A su
pervisor’s refusal to invite an employee to lunch is nor
mally trivial, a nonactionable petty slight. But to retaliate
by excluding an employee from a weekly training lunch
that contributes significantly to the employee’s profes
sional advancement might well deter a reasonable em
ployee from complaining about discrimination. See 2
EEOC 1998 Manual §8, p. 8–14. Hence, a legal standard
that speaks in general terms rather than specific prohib
ited acts is preferable, for an “act that would be immate
rial in some situations is material in others.” Washington,
Cite as: 548 U. S. ____ (2006) 15
Opinion of the Court
supra, at 661.
Finally, we note that contrary to the claim of the con
currence, 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 6 (ALITO, J., con
curring 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 materiality of the challenged action and the perspec
tive of a reasonable person in the plaintiff’s position, we
believe this standard will screen out trivial conduct while
effectively capturing those acts that are likely to dissuade
employees from complaining or assisting in complaints
about discrimination.
III
Applying this standard to the facts of this case, we
believe that there was a sufficient evidentiary basis to
support the jury’s verdict on White’s retaliation claim. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U. S.
133, 150–151 (2000). The jury found that two of Burling
ton’s actions amounted to retaliation: the reassignment of
White from forklift duty to standard track laborer tasks
and the 37-day suspension without pay.
Burlington does not question the jury’s determination
that the motivation for these acts was retaliatory. But it
does question the statutory significance of the harm these
acts caused. The District Court instructed the jury to
determine whether respondent “suffered a materially
adverse change in the terms or conditions of her employ
ment,” App. 63, and the Sixth Circuit upheld the jury’s
finding based on that same stringent interpretation of the
anti-retaliation provision (the interpretation that limits
§704 to the same employment-related conduct forbidden
by §703). Our holding today makes clear that the jury was
not required to find that the challenged actions were
16 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
related to the terms or conditions of employment. And
insofar as the jury also found that the actions were “mate
rially adverse,” its findings are adequately supported.
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 responsibilities and duties that are less desirable
than others. Common sense suggests that one good way to
discourage an employee such as White from bringing
discrimination charges would be to insist that she spend
more time performing 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” example of “forbidden retaliation.” 2
EEOC 1991 Manual §614.7, pp. 614–31 to 614–32; see also
1972 Reference Manual §495.2 (noting Commission deci
sion involving an employer’s ordering an employee “to do
an unpleasant work assignment in retaliation” for filing
racial discrimination complaint); EEOC Dec. No. 74–77,
1974 WL 3847, *4 (Jan. 18, 1974) (“Employers have been
enjoined” under Title VII “from imposing unpleasant work
assignments upon an employee for filing charges”).
To be sure, reassignment of job duties is not automati
cally actionable. Whether a particular reassignment is
materially adverse depends upon the circumstances of the
particular case, and “should be judged from the perspec
tive of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’ ” Oncale, 523 U. S., at
81. But here, the jury had before it considerable evidence
that the track labor duties were “by all accounts more
arduous and dirtier”; that the “forklift operator position
required more qualifications, which is an indication of
prestige”; and that “the forklift operator position was
Cite as: 548 U. S. ____ (2006) 17
Opinion of the Court
objectively considered a better job and the male employees
resented White for occupying it.” 364 F. 3d, at 803 (inter
nal quotation marks omitted). Based on this record, a jury
could reasonably conclude that the reassignment of re
sponsibilities would have been materially adverse to a
reasonable employee.
Second, Burlington argues that the 37-day suspension
without pay lacked statutory significance because Burling
ton ultimately reinstated White with backpay. Burlington
says that “it defies reason to believe that Congress would
have considered a rescinded investigatory suspension with
full back pay” to be unlawful, particularly because Title
VII, throughout much of its history, provided no relief in
an equitable action for victims in White’s position. Brief
for Petitioner 36.
We do not find Burlington’s last mentioned reference to
the nature of Title VII’s remedies convincing. After all,
throughout its history, Title VII has provided for injunc
tions to “bar like discrimination in the future,” Albemarle
Paper Co. v. Moody, 422 U. S. 405, 418 (1975) (internal
quotation marks omitted), an important form of relief.
Pub. L. 88–352, §706(g), 78 Stat. 261, as amended, 42
U. S. C. §2000e–5(g). And we have no reason to believe
that a court could not have issued an injunction where an
employer suspended an employee for retaliatory purposes,
even if that employer later provided backpay. In any
event, Congress amended Title VII in 1991 to permit
victims of intentional discrimination to recover compensa
tory (as White received here) and punitive damages, con
cluding that the additional remedies were necessary to
“ ‘help make victims whole.’ ” West v. Gibson, 527 U. S.
212, 219 (1999) (quoting H. R. Rep. No. 102–40, pt. 1, pp.
64–65 (1991)); see 42 U. S. C. §§1981a(a)(1), (b). We would
undermine the significance of that congressional judgment
were we to conclude that employers could avoid liability in
these circumstances.
18 BURLINGTON N. & S. F. R. CO. v. WHITE
Opinion of the Court
Neither do we find convincing any claim of insufficient
evidence. 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. 1 Tr. 154 (“That was the worst Christmas 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. A
reasonable employee facing the choice between retaining
her job (and paycheck) and filing a discrimination com
plaint 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 retalia
tion might often operate to induce aggrieved employees
quietly to accept substandard conditions”). Thus, the
jury’s conclusion that the 37-day suspension without pay
was materially adverse was a reasonable one.
IV
For these reasons, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
Cite as: 548 U. S. ____ (2006) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–259
_________________
BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, PETITIONER v. SHEILA WHITE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 22, 2006]
JUSTICE ALITO, concurring in the judgment.
I concur in the judgment, but I disagree with the major
ity’s interpretation of the antiretaliation provision of Title
VII of the Civil Rights Act of 1964, 78 Stat. 257, §704(a),
as amended, 42 U. S. C. §2000e–3(a). The majority’s
interpretation has no basis in the statutory language and
will, I fear, lead to practical problems.
I
Two provisions of Title VII are important here. Section
703(a) prohibits a broad range of discriminatory employ
ment practices.1 Among other things, §703(a) makes it
unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, condi
——————
1 Section 703(a) states in pertinent part:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or other
wise to discriminate against any individual with respect to his compen
sation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis
added).
2 BURLINGTON N. & S. F. R. CO. v. WHITE
ALITO, J., concurring in judgment
tions, or privileges of employment, because of such indi
vidual’s race, color, religion, sex, or national origin.” 42
U. S. C. §2000e–2(a)(1) (emphasis added).
A complementary and closely related provision, §704(a),
makes it unlawful to “discriminate against” an employee
for retaliatory purposes. Section 704(a) states in pertinent
part:
“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment . . . because he has op
posed 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.” 42 U. S. C. §2000e–3(a) (em
phasis added).
In this case, we must ascertain the meaning of the term
“discriminate” in §704(a). Two possible interpretations
are suggested by the language of §§703(a) and 704(a).
The first is the interpretation that immediately springs
to mind if §704(a) is read by itself—i.e., that the term
“discriminate” in §704(a) means what the term literally
means, to treat differently. Respondent staunchly defends
this interpretation, which the majority does not embrace,
but this interpretation presents problems that are at least
sufficient to raise doubts about its correctness. Respon
dent’s interpretation 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 discrimi
nation based on race, color, sex, national origin, or relig
ion—receive less protection than victims of retaliation. In
addition, respondent’s interpretation “makes a federal
case” out of any small difference 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
Cite as: 548 U. S. ____ (2006) 3
ALITO, J., concurring in judgment
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 be
cause of his protected activity. There is reason to doubt
that Congress meant to burden the federal courts with
claims involving relatively trivial differences in treatment.
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 other plausible interpretation, and the one I favor,
reads §§703(a) and 704(a) together. Under this reading,
“discriminat[ion]” under §704(a) means the discriminatory
acts reached by §703(a)—chiefly, discrimination “with
respect to . . . compensation, terms, conditions, or privi
leges of employment.” This is not, admittedly, the most
straightforward reading of the bare language of §704(a),
but it is a reasonable reading that harmonizes §§703(a)
and 704(a). It also provides an objective standard that
permits insignificant claims to be weeded out at the sum
mary judgment stage, while providing ample protection for
employees who are subjected to real retaliation.
The Courts of Appeals that have interpreted §704(a) in
this way state that it requires a materially adverse em
ployment action. See, e.g., Von Gunten v. Maryland, 243
F. 3d 858, 865 (CA4 2001); Gupta v. Florida Bd. of Re
gents, 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 context—to define the term “tangible
employment action,” a concept we used to limit an em
ployer’s liability for harassment carried out by its supervi
sors. We explained that “[a] tangible employment action
constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment
4 BURLINGTON N. & S. F. R. CO. v. WHITE
ALITO, J., concurring in judgment
with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id., at 761.
II
The majority does not adopt either of the two interpreta
tions noted above. In Part II–A of its opinion, the majority
criticizes the interpretation that harmonizes §§703(a) and
704(a) as not sufficiently faithful to the language of
§704(a). Although we found the materially adverse em
ployment action test worthy of “import[ation]” in Ellerth,
the majority now argues that this test is too narrow be
cause it permits employers to take retaliatory measures
outside the workplace. Ante, at 8–9 (citing Rochon v.
Gonzales, 438 F. 3d 1211, 1213 (CADC 2006); Berry v.
Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996)).
But the majority’s concern is misplaced.
First, an employer who wishes to retaliate against an
employee for engaging in protected conduct is much more
likely to do so on the job. There are far more opportunities
for retaliation in that setting, and many forms of retalia
tion off the job constitute crimes and are therefore espe
cially risky.
Second, the materially adverse employment action test
is not limited to on-the-job retaliation, as Rochon, one of
the cases cited by the majority, illustrates. There, a Fed
eral Bureau of Investigation agent claimed that the Bu
reau had retaliated against him by failing to provide the
off-duty security that would otherwise have been fur
nished. See 438 F. 3d, at 1213–1214. But, for an FBI
agent whose life may be threatened during off-duty hours,
providing security easily qualifies as a term, condition, or
privilege of employment. Certainly, if the FBI had a policy
of denying protection to agents of a particular race, such
discrimination would be actionable under §703(a).
But in Part II–B, rather than adopting the more literal
interpretation based on the language of §704(a) alone, the
Cite as: 548 U. S. ____ (2006) 5
ALITO, J., concurring in judgment
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 retaliatory acts that “well might have dis
suaded a reasonable worker from making or supporting a
charge of discrimination.” Ante, at 13 (internal quotation
marks omitted).
I see no sound basis for this test. The language of
§704(a), which employs the unadorned term “discrimi
nate,” does not support this test. The unstated premise of
the majority’s reasoning seems to be that §704(a)’s only
purpose is to prevent employers from taking those actions
that are likely to stop employees from complaining about
discrimination, but this unstated premise is unfounded.
While surely one of the purposes of §704(a) is to prevent
employers from engaging in retaliatory measures that
dissuade employees from engaging in protected conduct,
there is no reason to suppose that this is §704(a)’s only
purpose. Indeed, the majority itself identifies another
purpose of the antiretaliation provision: “to prevent harm
to individuals” who assert their rights. Ante, at 8. Under
the majority’s test, however, employer conduct that causes
harm to an employee is permitted so long as the employer
conduct is not so severe as to dissuade a reasonable em
ployee from making or supporting a charge of discrimina
tion.
III
The practical consequences of the test that the majority
adopts strongly suggest that this test is not what Congress
intended.
First, the majority’s test leads logically to perverse
results. Under the majority’s test, §704(a) reaches retalia
tion that well might dissuade an employee from making or
supporting “a charge of discrimination.” Ante, at 13 (in
6 BURLINGTON N. & S. F. R. CO. v. WHITE
ALITO, J., concurring in judgment
ternal quotation marks omitted). I take it that the phrase
“a charge of discrimination” means the particular charge
that the employee in question filed,2 and if that is the
proper interpretation, 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 protec
tion afforded to a victim of retaliation is inversely propor
tional 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 possi
ble retaliation, will have to be great to outweigh the bene
fits, such as preventing the continuation of the discrimina
tion in the future and obtaining damages and other relief
for past discrimination. Because the possibility of rela
tively severe retaliation will not easily dissuade this em
ployee, the employer will be able to engage in relatively
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
——————
2 The alternative interpretation—that “a charge” does not mean the
specific charge filed by the employee but an average or generic charge—
would be unworkable. Without gauging the severity of the initial
alleged discrimination, a jury cannot possibly compare the costs and
benefits of filing a charge and, thus, cannot possibly decide whether the
employer’s alleged retaliatory conduct is severe enough to dissuade the
filing of a charge. A jury will have no way of assessing the severity of
the average alleged act of discrimination that leads to the filing of a
charge, and, therefore, if “a charge” means an average or generic
charge, the majority’s test will leave juries hopelessly at sea.
Cite as: 548 U. S. ____ (2006) 7
ALITO, J., concurring in judgment
is unclear. Although the majority first states that its test
is whether a “reasonable worker” might well be dissuaded,
ante, at 13 (internal quotation marks omitted), it later
suggests that at least some individual characteristics of
the actual retaliation victim must be taken into account.
The majority comments that “the significance of any given
act of retaliation will often depend upon the particular
circumstances,” and provides the following illustration: “A
schedule change in an employee’s work schedule may
make little difference to many workers, but may matter
enormously to a young mother with school age children.”
Ante, at 14.
This illustration suggests that the majority’s test is not
whether an act of retaliation well might dissuade the
average reasonable worker, putting aside all individual
characteristics, but, rather, whether the act well might
dissuade a reasonable worker who shares at least some
individual characteristics with the actual victim. The
majority’s illustration introduces three individual charac
teristics: age, gender, and family responsibilities. How
many more individual characteristics a court or jury may
or must consider is unclear.
Finally, the majority’s interpretation contains a loose
and unfamiliar causation standard. As noted, the major
ity’s test asks whether an employer’s retaliatory act “well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Ante, at 13 (inter
nal quotation marks omitted; emphasis added). Especially
in an area of the law in which standards of causation are
already complex, the introduction of this new and unclear
standard is unwelcome.
For these reasons, I would not adopt the majority’s test
but would hold that §704(a) reaches only those discrimina
tory practices covered by §703(a).
8 BURLINGTON N. & S. F. R. CO. v. WHITE
ALITO, J., concurring in judgment
IV
Applying this interpretation, I would affirm the decision
of the Court of Appeals. The actions taken against re
spondent—her assignment to new and substantially less
desirable duties and her suspension without pay—fall
within the definition of an “adverse employment action.”
With respect to respondent’s reassignment, Ellerth
specifically identified a “reassignment with significantly
different responsibilities” as a “tangible employment
action.” 524 U. S., at 761. Here, as the Court of Appeals
stated, “[i]n essence, . . . the reassignment was a demo
tion.” 364 F. 3d 789, 803 (CA6 2004). The “new position
was by all accounts more arduous and ‘dirtier,’ ” ibid., and
petitioner’s sole stated rationale for the reassignment was
that respondent’s prior duties were better suited for some
one with greater seniority. This was virtually an admis
sion that respondent was demoted when those responsi
bilities were taken away from her.
I would hold that respondent’s suspension without pay
likewise satisfied the materially adverse employment
action test. Accordingly, although I would hold that a
plaintiff asserting a §704(a) retaliation claim must show
the same type of materially adverse employment action
that is required for a §703(a) discrimination claim, I would
hold that petitioner met that standard in this case, and I,
therefore, concur in the judgment.