The U.S. Supreme Court's 2005 Term: Retaliation, Sovereign Immunity, and Rico

Labor Law Journal, Winter 2006 | Go to article overview

The U.S. Supreme Court's 2005 Term: Retaliation, Sovereign Immunity, and Rico


The following individuals shared their views on the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White:

Philip M. Berkowitz, partner in the New York City office of Nixon Peabody LLP, and chair of the firm's international law practice team. Berkowitz advises employers on labor and employment issues.

Lynne Bernabei, founding partner of The Bernabei Law Firm, PLLC, Washington, DC. Bernabei is a civil rights lawyer, representing employment discrimination plaintiffs and whistleblowers.

In addition, Henry H. Drummonds, Professor of Law, Northwestern School of Law at Lewis and Clark College, Portland, Oregon, commented on the Court's decisions in Mohawk Industries, Inc. v. Williams and U.S. v. Georgia.

Throughout the year, CCH asked recognized experts in the field of labor and employment law to discuss decisions of the U.S. Supreme Court in the labor and employment arena. CCH welcomes the opportunity to share their observations with readers of the Labor Law journal.

BURLINGTON V. WHITE: "CONTEXT MATTERS"

In Burlington Northern & Santa Fe Railway Co. v. White,1 the US Supreme Court established a broad standard for determining what types of employer conduct can be considered illegal retaliation. Under the Court's new standard, the challenged action must be one that an objectively reasonable employee would have found "materially adverse." In other words, the employer's actions must be "likely to dissuade employees from complaining or assisting in complaints about discrimination." The decision resolves a split among the circuit courts of appeals over the proper standard for interpreting the antiretaliation provision of Title VII. All nine Justices affirmed a decision in favor of an employee who was reassigned and suspended for 37 days without pay after she complained to company officials about her supervisor's sexual harassment. Justice Alito concurred in the judgment but disagreed with the majority's standard.

"The decision clearly expands the definition of retaliation under Title VII," said Philip Berkowitz. It also has broad implications for retaliation claims brought under other statutes with anti-retaliation provisions, he added. "It unquestionably will give comfort to plaintiffs' lawyers. It will encourage the filing of these claims, and it will result in employers implementing even more stringent compliance policies."

"But if this decision forces employers to hold serious discussions with managers and employees about what kinds of things they can and cannot do after a person has filed a discrimination complaint, that is a good thing," Lynne Bernabei observed.

Background

Sheila White was a forklift operator and the only female working in her department. She complained to company officials about her supervisor's comments, including repeatedly telling her that women should not be working in that department and making insulting and inappropriate remarks to her in front of her male coworkers. After an investigation, the supervisor was suspended and ordered to attend sexual harassment training. During a meeting to resolve her internal complaint, White was told that she was being reassigned because of her coworkers' complaints. Her pay and benefits remained the same and the duties of the reassigned position were still within her job description, but her new job was "more arduous" and "dirtier" than the forklift position, which was considered a better job.

White filed an EEOC charge and a short time later, after an incident with a different supervisor, she was suspended for 37 days without pay for insubordination. A subsequent internal investigation and hearing determined that she had not been insubordinate and should not have been suspended. White was reinstated with full backpay.

A jury returned a verdict in the employer's favor on the sex bias claim and in White's favor on the retaliation claim. The en bane Sixth Circuit affirmed in part and remanded in part in a decision that addressed what constituted an adverse employment action under the retaliation provision of Title VII. …

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