June 23, 2006 | Posted By Diane Pfadenhauer | print this article

Supreme Court Verdict in Retaliation Case

The Supreme Court yesterday issued its verdict in the Burlington Northern v. White case that I previously discussed here.  There has been a buzz in the news regarding this case, which is likely the most important case of the year.  Here's what happened:

The plaintiff, a railroad employee, alleged that following her report of sexual harassment and the suspension of her supervisor as a result, she was reassigned to dirtier work, even though her job classification stayed the same. The railroad argued that both the forklift job and the laboring tasks were within her job description, and that she had suffered "no direct economic effect," especially since she had received back pay for the 37 day suspension.

The Supreme Court, however, upheld the United States Court of Appeals for the Sixth Circuit and noted that:  "Many reasonable employees would find a month without pay a serious hardship.... An indefinite suspension without pay could well act as a deterrent to the filing of a discrimination complaint, even if the suspended employee receives back pay."

In addition to various news articles on the ruling, several fellow bloggers have provided worthy analysis of the case:

  • Michael Fox, has a list of news coverage and commentary on the ruling - generally with the theme that the ruling is pro employee.
  • Ross Runkel has a clear analysis of what the standard is under the ruling
Generally speaking, the ruling seeks to balance conduct that would deter a person from filing a claim or charge against the idea that employees are subjected to many instances of annoyance or otherwise, that do not rise to the level of retaliation.  The standard:

"...the anti-retaliation provision...does not confine the actions and harms it forbids to those that are related to employment or occur at 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. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."


Looking at the spirit and intent of Title VII, this doesn't seem unreasonable to me.  When Ellerth and Faragher were decided almost 10 years ago, many people predicted doomsday for employers.  The reality is that we now have a standard that, although must be sorted out in the courts, will provide guidance to both sides of the bar as to what retaliation really is.