A 9-0 decision in favor of employees from the Roberts’ Supreme Court? Some didn’t think it was possible, but today workers received a break in the case of Burlington Northern v. White. The decision means that a worker who has faced retaliation, but has not been fired, denied a promotion, or subject to an “ultimate employment action,” can still bring a retaliation lawsuit as long as the action taken by the employer “would have been materially adverse to a reasonable employee or applicant.” Not only can plaintiff Sheila White, who was reassigned to a less desirable position and suspended without pay (but later reinstated with backpay) proceed with her lawsuit under the Supreme Court’s ruling, but other employees who have faced retaliation will find it easier to do so as well.
Sheila White was the only woman who worked in the Maintenance of Way department at Burlington Northern’s (BN) Tennessee Yard in Memphis. White had experience operating a forklift, but was hired by BN in 1997 to be a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Shortly after she started in the job, however, a forklift position opened up and White was reassigned to operate the forklift, although she continued to perform some of the track laborer tasks. (See Burlington Northern v. White decision.)
White had problems right away with her supervisor Bill Joiner, who repeatedly told her that women should not be working in the Maintenance of Way department and made insulting and inappropriate remarks to her in front of her male colleagues. After White complained to Burlington officials, Joiner was suspended for ten days and ordered to attend a sexual harassment session.
When the Burlington official who had hired White, Marvin Brown, told White about Joiner being disciplined, he also told her she would be reassigned from forklift duty and would return to performing only track labor tasks. Brown explained to White that co-workers had complained that it was only fair for a “more senior man” to have the “less arduous and cleaner job” of forklift operator. Shortly thereafter, Ms. White filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the reassignment was due to illegal gender-based discrimination and retaliation for her complaints against Joiner.
White’s problems at work continued: in December, she filed a second retaliation charge after claiming that Brown had placed her under surveillance and was monitoring her daily activities. Later in the month, she got into an argument with her immediate supervisor, and was suspended without pay for being insubordinate. When White filed an internal grievance, BN concluded that she had not been insubordinate, and reinstated her with back pay for the 37 days of pay she lost as a result of the suspension.
But that was too late for Christmas that year. “That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad,” she shared. (See New York Times article.) Ms. White was so depressed that she sought medical treatment, and filed an additional retaliation charge with the EEOC based on the suspension.
When White’s case moved forward, BN claimed that White had not been retaliated against. They argued that changing White’s work duties could not meet the legal standard for retaliation, since she remained in the same job and under the same job description as when she was hired. They also claimed that since White was reinstated with pay, she didn’t suffer any legally recognizable harm for the period during which she was suspended.
Part of the reason this case reached the Supreme Court is because different courts had different standards for what constitutes illegal retaliation. Some of the most pro-employer courts required the retaliation to reach the level of an “ultimate employment action,” such as actions affecting “hiring, granting leave, discharging, promoting, and compensating.” Other courts held that illegal retaliation was any material action which “dissuaded a reasonable worker from making or supporting a charge of discrimination,” which meant that it didn’t have to relate to the employment setting, and could stop short of being an ultimate action. The Sixth Circuit, from which this case was appealed, employed an intermediate standard, but one identical to the standard required to prove discrimination, which said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment.
When argued before the Supreme Court, the employer BN did not argue for the most restrictive interpretation, but argued that the Sixth Circuit had misapplied its own standard. The plaintiff, Sheila White, however, instead of resting on the standard under which she had won below, argued for the least restrictive standard of all, that there is no minimum threshold at all for actionable retaliation so long as the action is adverse to the employee and is because of the employee’s protected conduct.
And interestingly (as well as disappointingly) the Solicitor General, arguing on behalf of the U.S. Government, disavowed the retaliation standard promoted by the federal EEOC. The S.G.’s office nominally supported White, by arguing for the standard promoted by BN, but claiming that White should have succeeded under that standard. It appears that the EEOC was muscled out by the more conservative Department of Justice when it came to deciding what the government’s position should be. (See SCOTUSblog, Oral Arguments in Burlington v. White).
The result, however, was a surprising win for employees. The Supreme Court adopted the standard already in place before a couple of appellate courts. While it was not quite as relaxed a standard as White’s attorneys had argued for, it is nonetheless pro-employee and likely to keep open most avenues for employees attempting to prove retaliation.
Justice Breyer, writing for a unanimous Supreme Court, establishes requirements for retaliation cases to move forward: 1) the retaliation must be “materially adverse,” — significant as opposed to trivial; and 2) such that it might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” It does not have to be confined to employment or occur at the workplace, however, as long as it is something more than the”petty slights or minor annoyances that often take place at work and that all employees experience.”
When the standard was applied to White’s case, the $43,500 in damages she received from a jury was upheld, as it was reasonable for a jury to conclude that changing White’s job and suspending her without pay were material adverse and designed to dissuade her from complaining about the discrimination she suffered. After fighting for nine years to address the retaliation she suffered, Sheila White will finally prevail.
Before you get too excited about this important victory for workers, however, there is some bad news, which is that Justice Alito may be as hostile to employment cases as we all feared when opposing his nomination to the Supreme Court. Although Justice Alito agreed with the result, he wrote a separate concurrence saying that he thought the retaliation standard should be more restrictive and would require a “adverse employment action,” similar to the requirement for discrimination cases.
He thought White met that standard, but the separate concurrence means that Alito’s interpretation is to the right of every single other member of the Supreme Court, including Justices Scalia and Thomas. It did not matter in this case, but very well may matter in the future in decisions where the Court is more divided. For workers who don’t think their votes matter, here is a very concrete example where having a different president would have prevented nominees like Alito from reaching the Court.
Retaliation cases are an important tool for workers who may have more difficulty proving that actions taken against them occurred for discriminatory reasons, but find their job situation goes downhill significantly when they try to complain about discrimination. This decision helps ensure that our laws against retaliation is not considered the poor stepchild when compared to antidiscrimination laws, but continue to be a strong and vital way to protect employees trying to ensure that their rights are not trampled upon by their employers. Congratulations are in order to Sheila White, her attorney Donald Donati, and all those who fight back against workplace discrimination and face even worse conditions as a result.