Supreme Court Hears Workplace Retaliation Case

The Supreme Court hears arguments related to employees being punished after making discrimination complaints. The case of a worker suspended without pay for more than a month could define the circumstances under which an employee who charges discrimination can also sue for retaliation.

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Today the Supreme Court examined the question of workplace retaliation against workers who file discrimination claims. The question is how to separate trivial claims of retaliation from cases where employers are trying to scare victims of discrimination out of going to court.

NPR's Nina Totenberg has our report.

NINA TOTENBERG reporting:

Today's case began eight years ago when 41-year-old Sheila White, a five-foot-one-inch forklift operator was hired by the Burlington Northern Railroad. She was the only woman working on the tracks and after three months, she complained to the company of sexual harassment. She was taken off the forklift and assigned to more physically arduous duties repairing tracks. She then filed a retaliation complaint and was suspended for insubordination.

Thirty-seven days later, she was reinstated with back pay. In the end a jury awarded her $43,000 in damages for illegal retaliation. Burlington Northern appealed to the Supreme Court backed by the business community, which asserts that these lawsuits too often involve trivial matters.

Inside the court today, Burlington Northern's lawyer, Carter Phillips, told the justices that retaliation lawsuits are a growing problem for business, that the number has doubled over the last decade and that Congress did not intend to authorize retaliation suits except for actions like hiring, firing, demotion, and promotion, actions that typically involve economic damages.

Sheila White, the lawyer said, had not been economically harmed and thus had no right to sue. But with the exception of Chief Justice Roberts and to a lesser extent Justices Scalia and Alito, lawyer Phillips didn't get much sympathy from the court. Justice Briar suggested that Congress had deliberately not limited retaliation lawsuits because it understood, as he put it, that there are hundreds of ways to freeze out employees in retaliation.

The argument then became a conversation about lunch. Lawyer Phillips argued that being disinvited to lunch could be seen by some employees as retaliation.

Justice Briar, “Well if it's the big power lunch of all time and the employee's career will take a nose-dive if she's not there, why wouldn't that be retaliation?”

Justice Ginsberg, “What if it's a weekly lunch and the manager takes out all the employees every week except this one?”

Phillips fudged, prompting Justice Scalia to step in. “I'm concerned that you concede lunch. How does that affect the terms and conditions of employment?”

Justice Kennedy, exasperated, “How about excluding someone from the forklift job for a year?”

Answer, “That has no economic impact on her. The job category is track worker and the forklift job is just part of that.”

Justice Kennedy, “It has an impact on her back. You have a jury finding here of discrimination.”

Chief Justice Roberts, “If being a forklift operator is really a separate job, it's up to the union to define it separately. Or failing that, he said, what if the railroad shuffles the forklift job around, giving it to different people on different days?”

Justice Ginsberg, tartly, “That wouldn't have been possible here since there was only one person who knew how to operate the forklift and it was a new job.”

Justice Souter, “If this is seen as all one job category, every employer would be advised to have one really nice job within each category and one really rotten job. And every time someone brings an employment discrimination claim based on race or gender, they get the really rotten job. Isn't there a big difference between sitting on a seat in a forklift and picking up steel tracks with your bare hands?”

Lawyer Phillips didn't have much more success when he argued that Sheila White's 37-day suspension without pay was trivial because she was eventually reinstated with back pay and there was no ultimate official action against her.

Justice Ginsberg, “When someone is suspended that's as official as it gets.”

Justice Scalia, “She was docked in pay for two weeks. For some people that would be a real hardship.”

Justice Ginsberg added, “It was 37 days without pay. She was understandably worried about how she would feed her children.”

Representing Sheila White, lawyer Donald Donati had an easier time, but not a free ride as the justices tried to come up with a definition of illegal retaliation. Donati told them that any per se rule that automatically exempts some category of behavior would create a safe harbor in which managers are free to retaliate.

“But,” interjected Justice Scalia, “without a clear rule, what's to prevent every little thing from becoming a basis for a retaliation lawsuit?”

The court's answer to that question is expected by summer.

Nina Totenberg, NPR News, Washington.

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