In the wake of today's highly anticipated ruling from the U.S. Supreme Court in Burlington Northern & Santa Fe Railway v. White, employers have far less latitude to make transfers or changes to an employee's job duties after filing a discrimination claim. The Court unanimously affirmed a $43,500 jury award for retaliation for a female forklift operator who was transferred to a less desirable job after she sued her employer for sexual harassment. In its decision, the Court considered two incidents of possible retaliation -- the job transfer and an unpaid but later reimbursed suspension -- and found that both constitute actionable retaliation under Title VII of the Civil Rights Act of 1964. This decision tilts the scales in favor of employees and significantly limits employer decisions.

Sheila White began work in 1997 with Burlington Northern & Santa Fe Railway in Memphis, Tennessee, as a forklift operator. She was the only woman working in the rail yard, and though she was qualified to run the forklift, her coworkers resented her for taking the coveted position. Subsequently, she was subjected to a barrage of insults and harassment, including numerous comments from her direct supervisor that a woman shouldn't be working in the rail yard. She eventually complained to her foreman's manager about the comments and harassment, and the
foreman was suspended for 10 days. White contends, however, that she also was punished by being transferred from her forklift job to track labor, a less desirable, more physically demanding job.

White filed charges with the Equal Employment Opportunity Commission, and almost immediately, she was suspended from her job for 37 days for insubordination.  When she filed a grievance with her union, the company reinstated her track labor job with back pay, but she wasn't reinstated to the forklift job. White then sued for sex discrimination and retaliation and was awarded approximately $43,000 in compensatory damages for her retaliation claim, though her sex discrimination charge was rejected. Burlington appealed to the Sixth U.S. Circuit Court of Appeals, arguing that because White had lost no pay, the job reassignment didn't constitute a "materially adverse" or "tangible employment action" necessary to find actionable discrimination.

Generally, employers prefer the most limited definition of retaliation possible, which allows a wider berth for business decisions and prevents employers from being sued for retaliation based on trivial changes such as an unfriendly demeanor. The high court adopted a broad standard, however, making employers liable for unlawful retaliation if their actions "interfere with an employee's efforts" to avoid discrimination. Justice Stephen G. Breyer, who delivered the opinion, concluded that the Title VII antiretaliation provision covers employer actions that "would have been materially adverse to a reasonable employee or job applicant" to the point that a reasonable worker could be dissuaded from making or supporting a discrimination charge. The decision will leave trial courts to
determine whether employer actions could be considered intimidating by a reasonable employee based on the context of employment. This case-by-case approach seems destined to cause considerable employer heartburn and second-guessing of many employment decisions.