The Supreme Court unanimously upholds a worker’s right to sue for retaliation when the worker complains about bias, even when that retaliation does not take an ultimate form such as firing or denial of promotion.
Reassignment to a less attractive job or a temporary suspension without pay can constitute retaliation, the Court said in deciding Burlington Northern v. White (05-259). (The Court’s decision is available here; Justice Samuel Alito’s concurring opinion is here.)
The disagreement within the Court — between eight Justices and Alito — centered on the scope of the anti-retaliation provision in Title VII. The Court concluded that workers claiming retaliation could sue not only over action taken against them in the workplace, on their wages, hours and working conditions, but also acts by the employer “outside the workplace.” The Court cited as examples of this broader kind of retaliation a failure to investigate threats against an FBI agent who had complained and filing false criminal charges against an employee who had complained. Alito argued that the concept should be confined to workplace action. Alito, who joined only the result, also objected to the majority’s test of how severe retaliatory action must be; the majority said it would embrace acts that might dissuade a “reasonable worker” from complaining about workplace bias, even if the action did not go so far as firing or denial of a promotion.
Plaintiff Sheila White was made to feel very unwelcome as the only woman working in a railroad maintenance yard in Memphis. The New York Times describes what she went through thus:
Nine years ago this month, she was hired as a “track laborer,” a down-and-dirty job that involves removing and replacing track, cutting brush, clearing litter and other drudgery. Soon there was an opening for a forklift operator, and since she had operated forklifts before she was a logical choice.
But some of the men complained that a forklift was no place for a woman and made insulting remarks to that effect. The offenders included her supervisor, who was suspended by the railroad for 10 days and ordered to undergo training to correct his sexually harassing ways.
But Ms. White’s troubles were not over. Soon afterward, she was removed from the forklift job and given standard laboring tasks. The man who had hired her explained that other workers thought a “more senior man” should be able to run the forklift, according to court papers.
So Ms. White filed two complaints with the Equal Employment Opportunity Commission, one alleging that her reassignment amounted to unlawful gender-based discrimination in retaliation for her complaining about sexual harassment, the other alleging that she had been placed under surveillance by the man who had hired her.
By this point, it was December. Ms. White had a run-in with another supervisor and was suspended without pay for insubordination. She filed an internal grievance, after which Burlington agreed that she had not been insubordinate after all. So she was put back on the payroll and awarded back pay for the 37 days she had been suspended. (Ms. White had filed still another complaint with the E.E.O.C. over the suspension.)
So, a terrific result, and a great victory for workers undergoing discrimination, harassment and bias on the job. And kudos for SCOTUS for the unanimous result.