High Court to Hear Workplace Retaliation Case

The Supreme Court has granted certiorari in a retaliation case involving the Burlington Northern & Santa Fe Railway.

As reported by Linda Greenhouse of The New York Times, the case raises the issue of whether transferring a woman working in a rail yard maintenance department from her forklift assignment to the less desirable position of working outdoors on the track — within 10 days after her complaint about sexual harassment by her supervisor — was the type of retaliation prohibited by Title VII, although she remained in the same job classification.

Toni Locy of the Associated Press frames the workplace retaliation issue in more precise legal terms:


What constitutes “materially adverse” changes in employment and whether employers can be found liable for retaliation if they transfer workers who have lodged complaints to jobs with similar pay scales and descriptions.

The AP story goes on to note what’s at stake for employers:

The Equal Employment Advisory Council, a nationwide association of employers, said in a friend-of-the-court brief filed with the Supreme Court that the 6th Circuit’s decision [in favor of the employee] could hamstring employers by giving workers “an effective veto power” over reassignments and lead to employees’ filing more charges of retaliation.

The council said EEOC data show that retaliation charges filed by employees have nearly doubled in the past 12 years, making it the fastest-growing category of complaints in job discrimination-related cases.

“Under the court’s rulings, once an employee has complained of discrimination, virtually every subsequent change in that employee’s assigned job duties becomes a potential basis for a retaliation claim … even if all tasks assigned to the employee are within his or her existing job description and the employee suffers no reduction in pay or loss of status,” said the group . . .

If adverse employment action is not defined in material terms, as reduction in pay or benefits, demotion, termination or the like, we are on a slippery slope.

Ask any employment lawyer representing management how many retaliation claims they’ve had that involved such intangibles as being “ostracized,” getting a somewhat negative evaluation, being yelled at, etc.

I think it’s quite common, and at some point such things just shouldn’t be the stuff of federal cases.

Related Post: “Don’t Fight Back! Avoiding Retaliation Claims”

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