Part I also explains the varied standards that were previously used when deciding what constitutes an adverse employer action and how the Supreme Court's recent decision in Burlington Northern resolved a split among the circuits. In Burlington Northern, the Supreme Court adopted a deterrence test to define adverse employer actions, which means the employer action must be harmful to the point that it would deter a reasonable employee of complaining of discrimination. Part II analyzes the actual effects of this decision, focusing in particular on DeHart. It shows how DeHart misapplied the deterrence standard by focusing on whether the employer action at issue deterred that plaintiff from complaining and not whether it would have deterred a reasonable employee from complaining. Part II also warns of the major problem associated with adopting a rule like the one set forth in DeHart: employees will be afraid to come forward with discrimination claims, which will allow employers to discriminate with impunity. Part III then stresses the importance of applying the deterrence test from Burlington Northern in a way that properly employs its objective standard. Courts must consider whether the employer's action would have the effect of deterring a reasonable employee from complaining, not whether the particular plaintiff was actually deterred. This will avoid results similar to DeHart's that can be fatal to potentially valid retaliation claims. Finally, Part IV concludes that if courts continue to misconstrue the subjective aspect of the Burlington Northern standard, then Congress or the Supreme Court must either provide clarification on how to identify an adverse employer action under the deterrence test, or find a different standard: one that asks whether a reasonable employee would have considered the employer action to be adverse.
Jessica L. Beeler,
Turning Title VII's Protection Against Retaliation Into A Never-Fulfilled Promise, 39 Golden Gate U. L. Rev.