Supreme Court to Decide What is Actionable Retaliation

On Monday the U.S. Supreme Court heard arguments in Burlington Northern Santa Fe Railway Co. v. White. The Court will decide whether Title VII's anti-retaliation provision prohibits an employer from (1) suspending a complaining employee without pay for a month, so long as the employee is reinstated with back pay, or (2) reassigning the employee from her position operating a forklift to a less desirable position in the railyard.

At the heart of the issue is the question of what degree of injury an employer's action must inflict to pass the threshold of "adverse employment action" in a retaliation case. For more than 40 years, federal law has prohibited employers from retaliating against employees who complain about discrimination on the job. But neither Congress, which included the anti-retaliation protection in the Civil Rights Act of 1964, nor the Supreme Court has ever defined "retaliation."This case began in a Memphis rail yard when the only woman working in the maintenance department there complained about sexual harassment by her supervisor. Within 10 days, the woman, Sheila White, was transferred from her assignment operating a forklift to the less desirable position, within the same job classification, of working outdoors on the tracks.Three months later, after she filed a formal complaint with the federal Equal Employment Opportunity Commission, her employer, the Burlington Northern & Santa Fe Railway Company, suspended her without pay. After a union grievance, she was restored to the payroll with back pay after 37 days.The question for the court is whether the United States Court of Appeals for the Sixth Circuit, in Cincinnati, correctly concluded that those events amounted to the type of retaliation that Title VII of the Civil Rights Act of 1964 prohibits. The appeals court upheld a jury award of $43,250 in compensatory damages to Ms. White. Currently, the various circuits are split on this issue. The most conservative position is that held by the Fifth Circuit. It holds that only retaliatory "ultimate employment actions" constitute retaliation under the statute, meaning things like termination, demotions, etc. This position is so misguided that not even the employer is arguing for its adoption.Interestingly, Burlington is arguing in favor of adoption of the "adverse employment action" test, which is the test utilized by the Sixth Circuit in ruling against the company. (Obviously, the company believes the Sixth Circuit misapplied the test). Under this framework, Title VII prohibits only the retaliatory creation of hostile work environments (not at issue here) and the imposition of "tangible employment actions."Having won under the Sixth Circuit's test, White has decided to swing for the fences at the Supreme Court level. She is encouraging the Court to adopt a rule that there is no minimum threshold at all for actionable retaliation under Section 703 -- so long as the action is adverse to the employee and is because of the employee's protected conduct, it is actionable.Here is the Sixth Circuit's Opinion.Here are the parties' briefs to the Supreme Court.Interesting notes from other sources: Scotusblog has an excellent review of the parties arguments and the odd position of the Solicitor General, who argues against both parties in this case and against the EEOC's position as well. The Washington Post has some notes regarding what was said during arguments Monday.Categories:

WrongfulTermination