SUPREME COURT MAKES RETALIATION CLAIMS MORE DANGEROUS FOR EMPLOYERS
A recent decision by the U.S. Supreme Court, Burlington N. & Santa Fe Ry. Co. v.
White, will likely encourage that trend. In that it is generally conceded to be in favor of
employees, the U. S. Supreme Court unanimously broadened the concept of retaliation
under Title VII of the 1964 Civil Rights Act to include employer actions that are
"materially adverse" to a reasonable employee including transfers or suspensions which
do not result in diminished pay or benefits.
Sheila White was a track laborer for Burlington Northern. She was the only woman in
the Maintenance Department. While she also performed some other track laborer tasks,
operating a forklift was White’s primary responsibility. White complained to Burlington
Northern officials that her immediate supervisor, Bill Joiner, had repeatedly told her that
women should not be working in the Maintenance of Way Department. Burlington
Northern suspended Joiner and requested him to attend sexual harassment training.
Burlington Northern's road master, Marvin 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 perform only standard track laborer tasks. Brown explained that the
reason reflected co-workers’ complaints that, in fairness, a more senior man should have
the less arduous and cleaner job of forklift operator. White claimed that the reassignment
of her duties amounted to unlawful gender-based discrimination and retaliation for
having complained about Joiner.
A few days later, White and Supervisor Percy Sharkey disagreed about which truck
should transport White from one location to another. Sharkey told Brown later that
afternoon that White had been insubordinate. Brown suspended White without pay.
White invoked internal grievance procedures. Those procedures led Burlington Northern
to conclude that White had not been insulting. Burlington Northern reinstated White to
her position and awarded her back pay for the 37 days she was suspended. White filed an
additional retaliation charge with the EEOC based on the suspension.
White’s claims eventually went to trial. A jury found in White’s favor. The full Court of
Appeals affirmed the District Court’s judgment in White’s favor, and Burlington
Northern sought review by the Supreme Court.
Title VII’s anti-retaliation provision forbids employer actions that discriminate against an
employee because he/she has opposed that Title VII forbids or has made a charge,
testified, assisted, or participated in a Title VII investigation, proceeding, or hearing.
According to the Court, by focusing on the materiality of the challenged action and the
perspective of a reasonable person in plaintiffs position, the law will screen out trivial
conduct while effectively punishing those acts that are likely to discourage employees
from complaining or assisting in complaints about discrimination.
Burlington Northern argued that a reassignment of duties cannot constitute retaliatory
discrimination where both the former and present duties fell within White’s job
description. The Court disagreed.
Reassignment of job duties is not automatically actionable. Whether a particular
reassignment is materially adverse, depending on circumstances of the particular case,
and should be judged from the perspective of a reasonable person in the plaintiffs
position considering all the circumstances. The jury had before it considerable evidence
that the track labor duties were more arduous and dirtier; that the forklift operator
position required more qualifications, an indication of prestige; and that the forklift
operator position was considered a better job and the male employees resented White for
occupying it.
Burlington Northern also argued that the 37-day suspension without pay lacked statutory
significance because Burlington ultimately reinstated White with back pay.
Again, the Court disagreed. White and her family had to live for 37 days without
income. They did not know during that time of when White could return to work. The
Court observed that many employees would find a month without a paycheck to be a
hardship. A reasonable employee facing the choice between retaining her job (and
paycheck) and filing a discrimination complaint might well choose the former. Thus, an
indefinite suspension without pay could well act as a deterrent to reporting discrimination
if the suspended employee eventually received back pay.
For the most part, before the White case, lateral transfers and other actions short of
termination sometimes were not considered serious enough to constitute retaliation. That
has changed, and we may expect that employees may more frequently challenge
managerial decisions, like reassignments, as being retaliatory.
The lesson for employers is that employees cannot be punished for making lawful
complaints. It is important to think through the circumstances before reassigning
employees or changing their duties or conditions of employment.
07/2008