Supreme Court Debates What Constitutes ‘Adverse’ Changes in Employment

The U.S. Supreme Court grappled early this week with the growing problem of employers retaliating in the workplace after an employee complains of sex or race discrimination.

Several justices were sympathetic to the plight of railroad forklift operator Sheila White, who was suspended without pay for 37 days at Christmastime in 1997 after she filed a sexual harassment complaint against her supervisor at the Burlington Northern Santa Fe Railway Co. in Memphis, Tenn.

But the conservative trio of Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito voiced concern about what legal standard should be used to evaluate the seriousness of changes in employment made by supervisors who may be angry over a worker’s discrimination complaint.

Scalia said when the railroad docked White’s pay it created a hardship for her that she had no choice but to view as a final action of her employer.

Justice Ruth Bader Ginsburg said White’s suffering didn’t end there. She said White experienced increased stress because she worried about how she would feed her children and whether she could buy Christmas presents for them.

But Scalia said he worried that “every trivial” reaction by an employer – such as refusing to say “Good morning,” or declining to take an employee to lunch – would be the subject of a lawsuit.

White’s lawyer, Donald Donati, warned justices that employers have “varied imaginations” when it comes to devising ways to intimidate workers from filing discrimination complaints in the first place.

Scalia said he worried even more about the vivid imaginations of juries when deciding to rule in favor of employees and in awarding damages in such cases.

A decision by the court could affect the balance of power in government and private workplaces nationwide.

The railroad company wants justices to overturn a decision by the Cincinnati-based 6th Circuit U.S. Court of Appeals that found that suspending White for 37 days without pay and transferring her to a more physically demanding job were “materially adverse” changes in her employment.

Businesses warn they will be hamstrung if justices side with workers and create a “superprotected class” of employees who can’t be disciplined or transferred once they file a discrimination complaint.

Carter Phillips, lawyer for the railroad, predicted that a ruling in favor of White would lead to more lawsuits.

In court filings, he said employees filed nearly twice as many complaints with the government alleging retaliation by employers, making it the fastest-growing category of complaints in job discrimination-related cases.

White, the only woman working at a railroad yard, complained that her foreman was sexually harassing her and that other workers disparaged her by saying a rail yard was no place for a woman.

A company investigation led to the foreman’s suspension and enrollment in sensitivity classes. But the railroad also transferred White to work as a regular track worker, a more physically difficult job than operating a forklift.

After she filed a complaint with the Equal Employment Opportunity Commission, White was suspended without pay. The railroad eventually rescinded its decision – clearing her of insubordination charges – and compensated her for back pay.

A jury hearing her lawsuit rejected the discrimination charge but found in her favor on the retaliation claim, awarding her $43,000.

The case is Burlington Northern Santa Fe Railway v. White, 05-259.