- Veritude

<p>The Supreme Court, probing the meaning of employer retaliation against workers who complain of discrimination, appeared to be looking for a middle ground: a supervisor´s insulting snub probably would not be serious enough, but a temporary suspension of pay or a shift in assignment even with no pay cut might be. In an hour-long argument in April 2006 on the case of <a href="http://docket.medill.northwestern.edu/archives/003256.php"><b>Burlington Northern and Santa Fe Railway v. White</b></a>, the court took a keen interest in what one lawyer said were a "vexing set of issues in employment law."<br>
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The case focuses on the anti-retaliation protection that workers get under Title VII of the 1964 Civil Rights Act, when they complain about or actually file charges of workplace discrimination. But the outcome of the case is also likely to apply as well to anti-retaliation protection provided under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act and the Family and Medical Leave Act. None of those laws defines what kind of adverse action an employee must prove in order to show retaliation. That is the gap the Burlington Northern case is expected to fill, after lower courts have reached widely conflicting results on the issue.<br>
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<b>Claims of Employer Retaliation Are Rising and Costly.<br>
</b>Retaliation claims have been increasing rapidly in recent years, according to the U.S. Equal Employment Opportunity Commission. In fiscal year 2005, 25.8 percent of all workers who filed any kind of charge at that agency claimed retaliation under Title VII. There were 19,429 such charges that year, up from 10,499 in 1992, when only 14.5 percent of all workers going to EEOC made such a claim. Although retaliation claims under other federal laws are far less numerous, there has been a growth in those, too, according to EEOC data.<br>
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According to one estimate made by employers, it costs them $130,000 to deal with each such claim.<br>
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The test case before the court involves a Burlington Northern track worker, Sheila White. After she complained of sex discrimination on the job, she was taken off an assignment of driving a forklift and put on track repair duty and was suspended without pay for 37 days while she was investigated for insubordination. She was cleared, and her back pay was restored. She won $43,000 in damages from a jury for her retaliation claim. The railroad appealed the case to the Sixth U.S. Circuit Court of Appeals in Cincinnati. A three-judge panel of that court rejected the retaliation claim, but the full appeals court ruled that White had proved retaliation by showing a "materially adverse change" in her work conditions. The railroad then took the case to the Supreme Court.<br>
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Railroad Argues that Low Standard of Proof Could Double Future Claims.</b><br>
Carter G. Phillips, a Washington lawyer for Burlington Northern, offered the Supreme Court a recital of the burdens on employers as he expressed a fear that the number of retaliation claims to the EEOC will double again in future years, if the court makes it too easy to prove such a claim.<br>
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Phillips argued that lawyers for railway worker White were pressing a standard that any form of differing treatment of a worker who had complained would constitute retaliation. "Even disinviting an individual to an employee lunch would be retaliation under their theory," the railroad´s lawyer said. Workers, he contended, should be able to prove retaliation only if they could show they suffered a significant change in working condition - a loss of pay, a demotion, or denial of a promotion, and not just a shift in assignment at the same pay or a wage-suspension that was later "cured." Direct economic effect, according to Phillips, should be the measure.<br>
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The justices reacted with considerable skepticism. Even as to the lunch snub, some members of the court said, it is possible to imagine a set of circumstances surrounding denial of a lunch invitation that would be severe enough in impact to qualify as retaliation. And the justices also indicated that a shift in assignment, even with no pay cut, might be harmful enough to a worker to send a signal that complaining would be punished.<br>
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<b>Justices Ponder Real-World Details of Retaliatory Actions.</b><br>
The court in general seemed to be closely attentive to the practical, real-world details of what might be done to workers to deter them from complaining. For example, Justice Stephen G. Breyer said: "I can think of many things that would really discourage a worker from complaining that would not really be tangible employment actions."<br>
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The lawyer for Sheila White, Donald A. Donati of Memphis, later picked up on the point, saying "It doesn´t take much to intimidate a person who has an economic interest involved." But Donati also managed to stir some skepticism among the justices, when he expanded on his point that any form of discrimination against a complaining worker should constitute retaliation. He said that Congress had intended that "retaliation would be as varied as the human imagination." Justice Antonin Scalia retorted: "I worry about that. That is the problem. Juries can have wonderful imaginations." Donati fell back on the argument that "common sense" should prevail in defining retaliation, but that there should be no hard-and-fast definition.<br>
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The court is expected to decide the case before it recesses for the summer in late June 2006.</p>

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<p><b>Lyle Denniston</b> is a veteran Supreme Court reporter, having covered the highest court for 47 years. He thus has covered one out of every four Justices ever to sit on the Court. Denniston writes for <a href="http://www.veritude.com/ResourceCenter/Home.aspx"><b><i>Workforce Insights</i></b></a>, an online resource about emerging labor trends and issueson <a href="http://www.veritude.com/"><b>Veritude.com</b></a>.  Most recently with <i>The Boston Globe</i>, Denniston is now reporting on the Court for SCOTUSblog, a Web site devoted to news and information about the Court, and for the NPR Boston affiliate, WBUR.</p>

<p><b>Veritude</b> provides strategic human resources - the talent, technology and tactics that growing firms need in order to anticipate and adapt to changes in the workplace. Veritude is a wholly owned subsidiary of Fidelity Investments. Headquartered in Boston, the company serves clients throughout the United States and Canada and is part of Fidelity´s ongoing investment and leadership in outsourced HR services. <em>To review other articles, research and expert analysis relevant to HR professionals seeking to stay informed, please visit</em> <a href="http://www.veritude.com/"><em><b>www.veritude.com</b></em></a><em><b>.</b>For more information, contact: <a href="mailto:inquiry@veritude.com"><b>inquiry@veritude.com</b></a>; or call 1-800-597-5537.</em></p>

<p>^©2006 Veritude, LLC.  Reprinted with permission</p>