Ruling Expands Grounds for Retaliation Case

By Staff Report

Jul. 17, 2006

Near the end of its term in late June, the court ruled in favor of Sheila White, a forklift operator at Burlington Northern & Santa Fe Railway Co. who alleged that the company unfairly retaliated against her charge of sexual discrimination when it reassigned her to more physically demanding work in the rail yard.

After she complained, she was suspended for 37 days without pay for insubordination. The company later reinstated her wages. The Supreme Court upheld a jury decision that awarded White $43,500 in compensatory damages.

In a unanimous decision, the court said that illegal retaliation can occur beyond the terms of employment and outside the workplace. “We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant,” Justice Stephen Breyer wrote in the opinion.

That formulation broadens protection for victims beyond defending their jobs and pay. Now they may be able to sue if companies change their schedules and make it impossible for them to pick up their children from day care or exclude them from meetings or lunches that affect their job performance.

Essentially, the Supreme Court asserted that determining whether retaliation is unlawful depends on the facts surrounding the life of the victim. That specificity may make it harder for companies to obtain summary judgment and keep the matter out of court.

“You’re going to trial,” says Allison West, an attorney with Employment Practices Specialists in Pacifica, California. “The floodgates are going to open even more on these retaliation claims.”

Alan King, a partner in the Chicago law firm Gardner Carton & Douglas, says the Supreme Court decision will alter how retaliation cases are handled. “This has raised the cost of litigation to employers and will lead to more settlements,” he says.

Although lawyers’ fees can vary widely depending on the details of a case, King estimates that a company’s legal bills may rise by $100,000 or more for an individual case.

To avoid being sued, companies should spend more time following up with employees who have complained about discrimination and pay attention to the details of their lives, even beyond work, West says.

“Ask questions, find out how someone is being treated in the workplace,” she says. “You really need to look at the individual and the individual’s circumstances.”

This is the lesson Burlington learned. The company thought it had remedied White’s grievance when it gave her back pay.

But she was originally suspended during the holiday season, leaving her in especially poignant limbo. “It was rough,” she said following the oral argument for her case in April.

The Supreme Court concurred. “White and her family had to live 37 days without income,” the opinion states. “Many reasonable employees would find a month without a paycheck a serious hardship.”

–Mark Schoeff Jr.

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