High Court Weighs Retaliation at Work

By Charles Lane
Washington Post Staff Writer
Tuesday, April 18, 2006

Sexual harassment in the workplace is against federal law. An employer is also liable if he or she discriminates against an employee who files a sexual harassment complaint. But the law is vague on a key question: How harsh does the employer's retaliation have to be before it violates the law?

That was the issue at the Supreme Court yesterday, as the justices heard oral argument in Burlington Northern and Santa Fe Railway Co. v. White , No. 05-259 -- a case that could affect the legal rights of millions of workers who are covered by Title VII of the 1964 Civil Rights Act, the main federal law against job discrimination, and their employers.

Charges of unlawful retaliation under Title VII nearly doubled between 1992 and 2005, from 10,499 to 19,429. They account for a quarter of the Equal Employment Opportunity Commission's caseload.

A lawyer for Burlington Northern, Carter G. Phillips, told the court yesterday that, unless the court clarifies the legal standard, "any act of retaliation, no matter how trivial" -- even an employer's refusal to take a subordinate to lunch -- could trigger a lawsuit. The cost of litigation to employers, would soar, Phillips argued.

But Donald A. Donati, representing Sheila White, countered that it must be relatively easy to sue for retaliation, lest sexual harassment laws be weakened.

"It doesn't take much to intimidate an individual from filing a claim," he said.

White was hired as a forklift operator at Burlington Northern's Memphis yard in June 1997. Soon thereafter, she filed a sexual harassment complaint. Her supervisor transferred her to a more arduous job and then suspended her without pay for alleged insubordination.

After a 37-day suspension, a hearing officer found the charge against White meritless and reinstated her with back pay.

Phillips told the court that the law was not intended to prohibit this kind of treatment, because White's pay and benefits were not cut and the company corrected its mistake in suspending her.

He urged the court to rule that only a significant change in job status, such as a pay cut or demotion, should count as retaliation.

The Bush administration has adopted a middle position in the case, arguing for a legal standard such as the one Burlington Northern advocates but maintaining that Smith's claim would meet it.

Two federal circuit courts of appeals have adopted standards similar to the one Burlington Northern seeks. But Justice Stephen G. Breyer noted that other appeals courts have adopted a broader rule that outlaws employer retaliation that would be "reasonably likely to deter" someone from charging sexual harassment.


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