Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. The Supreme Court held that such an action is one that well might have dissuaded a reasonable employee from making or supporting a charge of discrimination. In Millea v. Metro North R.R. Co., the Second Circuit held that this same “materially adverse” standard applies to FMLA retaliation claims, citing similar determinations by the 3rd, 4th, 5th, 7th and 10th Circuits.

The Burlington Northern standard is a much broader standard, more favorable to plaintiffs, than the definition of “adverse employment action” applicable in non-retaliation cases. This expanded definition has contributed to an increasing number of retaliation charges. During the EEOC’s most recent fiscal year, more than one third of all charges filed with the agency included a retaliation claim.