Advertisement

Justices Define Employer Reprisal Liberally

Share
Times Staff Writer

The Supreme Court on Thursday strengthened the enforcement of civil rights laws in the workplace, ruling that it is illegal for employers to punish workers who file discrimination complaints by shifting them to a less appealing job or changing their work hours.

The 9-0 ruling upheld a $43,500 jury verdict in favor of a railroad worker who was reassigned from her job as a forklift operator to more arduous track-repair work after she complained of sexual harassment.

In the Civil Rights Act of 1964, Congress made it illegal for employers to retaliate against employees who complain of discrimination. But until Thursday, the Supreme Court had never specifically defined retaliation.

Advertisement

With surprising unanimity, the justices rejected the arguments of business lawyers who said that “minor changes in work assignments” should not be deemed illegal simply because an employee had complained of discrimination.

Instead, they set a rule that bars all but trivial actions taken against a complaining employee.

For example, a “petty slight” -- such as a supervisor failing to invite an aggrieved employee to lunch -- does not amount to illegal retaliation, the court said. However, if the worker is excluded from a lunch that also serves as a weekly planning meeting, he or she may well be able to win a separate discrimination charge against the employer.

If the employer’s action against an employee could have “dissuaded a reasonable worker” from complaining in the first place, then it is illegal, the court said.

Legal experts predicted an increase in retaliation complaints, which now account for about one in four job discrimination cases.

“Employees who have discrimination complaints often cry retaliation,” said Mimi Moore, a management lawyer in Chicago. “And now they will have a much better chance of getting their cases before a jury.”

Advertisement

In general, employers want to stop such complaints before they get to a jury because they can result in large damage awards.

Thursday’s decision arose from a case of sex discrimination, but it applies also to claims of discrimination based on race, religion, ethnicity, age or disability.

The court’s ruling came in the case of Sheila White, who in the summer of 1997 was the only woman on a Burlington Northern & Santa Fe Railway Co. maintenance crew in Memphis, Tenn. She had experience operating a forklift and was given that job soon after she arrived.

After a few months, she told company officials that her supervisor was making sexist and off-color comments, including remarks, echoed by other workers, that a woman did not belong there.

The supervisor was suspended for 10 days, but an official also reassigned White from the forklift to track labor at the same pay. She contacted the Equal Employment Opportunity Commission, contending that the reassignment was unlawful gender discrimination and retaliation for her original complaint.

Later, after a dispute with another supervisor, White was suspended without pay for 37 days during the Christmas season. She filed another EEOC complaint.

Advertisement

White also filed a grievance through her union. After a hearing, the company agreed that the suspension was a mistake, and she was reinstated with back pay.

In addition to her EEOC complaints, White sued the company, charging that the job change and the suspension amounted to retaliation under the Civil Rights Act. A jury ruled against her on her complaint of sex discrimination, but it ordered the railroad to pay her $43,500 in compensatory damages for having retaliated against her after she complained.

In their appeal to the high court, lawyers for the railroad noted that in 2004 alone, more than 20,000 discrimination claims citing retaliation were filed, and they argued that lower courts were too willing to allow such claims for minor shifts in job status. They said claims should be restricted to major actions, such as a firing or demotion.

But in Burlington Northern & Santa Fe Railway vs. White, the Supreme Court disagreed.

“Almost every job category involves some responsibilities and duties that are less desirable than others,” Justice Stephen G. Breyer wrote.

“Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties.”

Civil rights lawyers had argued that anti-discrimination laws would be badly weakened if employers were free to take action against workers who complained.

Advertisement

Legal Momentum, a women’s rights group, called Thursday’s ruling “a huge victory for employee rights.”

The decision “is an emphatic statement that employees should be able to raise a good faith complaint of discrimination without fear of retaliation from their employers,” said Gillian Thomas, a lawyer for the group.

But Stephen Bokat, a lawyer for the U.S. Chamber of Commerce, said the decision would put employers in a bind.

“Disgruntled employees feel they have not been given a fair shake, and they tend to look for the slightest provocation,” he said.

Once they complain formally of discrimination, he said, “it’s tough to figure what the employer can do. I think the inclination will be to treat them with kid gloves and not change anything until the discrimination complaint is resolved.”

New Justice Samuel A. Alito Jr. agreed with the case’s outcome, but wrote a separate opinion that faulted the majority for adopting a “new and unclear standard” that would be confusing to apply.

Advertisement

In the majority’s opinion, Breyer wrote that “context matters” in determining whether an action amounted to illegal retaliation. For example, changing a worker’s schedule may not be illegal in most instances, but it might well be for a mother with school-age children, he said. Alito contended that such a standard would be hard to apply fairly.

In most workplaces, employees can lodge a discrimination complaint by speaking to their supervisor. At that stage, they need not have a filed a formal complaint with a government agency or a court.

Advertisement