Thursday, July 06, 2006

The Supreme Court Got It!

In a 8-0 (Alito was not part of the decision) decision handed down on June 22, The Supreme Court "got" what sexual discrimination is in the workplace. [Burlington Northern & Santa Fe Railway Co. v. WhiteNo. 05-259]

The Facts:White took a job as forklift operator with the railroad. On her first day her foreman told her in from of the whole crew that when she had her period, he should know and he'd give her lighter duty. She ignored this, but ultimately complained. The foreman was sent to sexual harassment training. SHE was re-assigned duty that she was not trained for, that was more dangerous, etc. Then she was suspended without pay for 37 days for insubordination. (She grieved this action, and was re-instated with back pay). She sued the company under Title VII of the 1964 Civil Rights Act (which prohibits both discrimination in employment and retaliation for complaining) and, after a jury trial, she won.
Burlington Northern appealed the verdict on grounds that neither White's transfer nor her suspension was harmful enough to qualify as unlawful retaliation under Title VII. This argument was rejected by the Sixth Circuit Court of Appeals. So, Burlington Northern then petitioned the Supreme Court arguing that courts should not interfere with employers' ability to change workers' job assignments or to suspend them without pay pending disciplinary proceedings, even if those things were done in retaliation. (Can we say bully?)
The court accepted the case to resolve the "split" --the differing standards used to determine the level of harm necessary to constitute "retaliation" under Title VII. The differing levels ranged from "ultimate employment action" bar (firing, demotion or decisions with "tangible economic consequences") to that the action be "materially adverse," to the action would be "likely to deter" complaints of discrimination.

The Supreme Court found in White's favor: ruling that retaliation can be any action likely to dissuade a reasonable employee from complaining about discrimination.

To read Justice Breyer's full opinion go to

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