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In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.

While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, they have largely ignored the interplay of agency and retaliation when actions are taken by supervisors. The Article makes four key points. First, as a descriptive matter, the Article demonstrates how the facts of the Burlington case, as well as the way that the case was positioned legally, resulted in a decision where important agency principles appear to have been addressed, but actually were not. Next, the Article will argue that the lower courts in a post-Burlington world are intuitively sensing that agency concerns still lurk in retaliation claims. However, rather than address the agency issues, the lower courts appear to be improperly addressing concerns about employer liability through other portions of the retaliation inquiry, a practice that is not only disingenuous, but that will also result in an inconsistent development of the substantive retaliation provision.

The discussion then turns toward creating a framework to determine the types of cases in which agency will play an important role. Finally, the Article argues that unless Burlington is interpreted in the way suggested in this article, the decision will result in an agency jurisprudence that is at odds with the Court's current Title VII agency decisions. Such an outcome is untenable for most types of retaliation, as there is no theoretical reason to treat agency principles differently in the retaliation context, than in the discrimination context. Where arguments exist for departure from the traditional framework, the Article identifies those arguments, but ultimately concludes that the current structure is the best way to address agency issues in retaliation claims.


This article was published in 57 U. Kan. L. Rev. 157 (2008).