Supreme Court Hears Argument in Retaliation Case

Yesterday, the Supreme Court heard oral argument in Burlington Northern & Santa Fe R. Co. v. White, which we previewed in an earlier post, when the Court granted cert.

At that time, I was commenting based on media reports on the case and opposing views of its significance. Today, I not only read various media reports about the argument, which I’ll link below, but also read the decision appealed from, giving me a different perspective that I’ll explain. First, I’ll lay out my case summary, as I prepared it today for a seminar.

The Sixth Circuit affirmed the denial of the railroad’s motion for judgment as a matter of law following a jury verdict for the plaintiff, applying the following standard:

A “mere inconvenience or an alteration of job responsibilities” or a “bruised ego” is not enough to constitute an adverse employment action . . . . “[R]eassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions . . . .” A reassignment without salary or work hour changes, however, may be an adverse employment action if it constitutes a demotion evidenced by “a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”

The EEOC, as amicus, urged adoption of a broader definition of “adverse employment action”: “any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity.” The Sixth Circuit declined to change the definition, also rejecting a proposed narrower standard: that the action be an “ultimate employment decision.”

The Sixth Circuit held the plaintiff established that two different actions by the railroad met the appropriate definition of “adverse employment action.”

First, it held a thirty-seven day suspension without pay was an “adverse employment action,” even though the railroad later reinstated the plaintiff with back pay. While reinstatement would preclude recovery of back pay, the plaintiff was entitled to other relief, including damages for emotional distress and attorneys’ fees.

Second, the Sixth Circuit held that transferring the plaintiff from her forklift operator job to a standard track laborer job was an adverse employment action, although pay was unchanged. The new position was more arduous and “dirtier.” The forklift operator position required more qualifications, indicating greater prestige, and the evidence showed it was considered a better job. Thus, the reassignment was effectively a demotion without a pay cut.

Jottings By An Employer’s Lawyer writes: “Most Important Argument for Employers in Supreme Court’s Term Held Today,” highlighting a bit of the reported Q & A from oral argument, and guessing at a possible compromise decision by the Court.

NPR’s delightful Nina Totenberg offers up a pre-argument summary and post-argument report.

See also:

washingtonpost.com: High “Court Weighs Retaliation at Work”

Bloomberg.com: “High Court Members Signal Support for Worker Retaliation Suits”

BusinessWeek online (AP): “Court weighs discrimination retaliation”

Burlington Northern’s brief (listing over 10 attorneys of record).

Now, my thoughts. The standard articulated by the Sixth Circuit is about right. I think it is in accord with many Circuits.

The standard must be a flexible one. Certainly, some “slights” are too slight to be actionable.

But an employer must not be allowed to devise means of retaliation that cause true hardship to the employee but can be shielded from liability as not involving loss of pay, demotion, etc., such as here where it was later made up by back pay in a union settlement, or merely involved reassignment of duties within an existing job classification.

The problem is that this can be a very fact-specific determination. To some extent the Sixth Circuit deferred to the jury’s evaluation of the evidence.

The railroad’s attempts to wiggle out from liability strike me as hypertechnical.

Best way for Court to handle it, IMHO:

Reaffirm basic standard as enunciated by Sixth Circuit.

Emphasize need for flexibility and fact-bound nature of inquiry, looking at impact on employee’s terms and conditions of employment.

Conclude that reasonable jury could find, based on the entire record, that plaintiff sufferred “adverse employment action,” particularly with suspension.

Caution that not every change in job duties will meet the standard, but measure is not bounds of formal job classification, but impact on employee.

On this one, I apparently agree with the Bush administration, whose position the Washington Post describes as: “a middle position. . . , arguing for a legal standard such as the one Burlington Northern advocates but maintaining that [the] claim would meet it.”

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