A news release fromNew York law firm Proskauer Rose said it had advanced the argument in a friend-of-the-court brief on behalf of the Society for Human Resource Management (SHRM) and the National Federation of Independent Business (NFIB) Legal Foundation. The brief was filed in the case of Northern & Santa Fe Railway Co. v. Sheila White, which revolved around a dispute between a Burlington Northern employee and her boss, who the employee claimed sexually harassed her.
After the employee filed a complaint with the company, the supervisor was suspended and the employee was reassigned to a different position, which she had previously occupied, with equal pay and benefits. Soon after, she filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that her reassignment constituted retaliation and sex discrimination. In a subsequent unrelated incident, the employee was accused of insubordination and suspended without pay. However, the release said an internal investigation found that she had not been insubordinate and she was reinstated with back pay.
SHRM and NFIB Legal Foundation argued that a 6 th US Circuit Court of Appeals ruling that the company’s actions toward the employee constituted retaliation should be thrown out. It, “coupled with other lower courts’ recognition of an expanding and volatile range of retaliation claims, jeopardizes legitimate employer practices and opens the door for an increase in litigation,” the legal brief asserted.
According to the brief: “…neither job transfers to equal paying positions nor interim suspensions that are subsequently overturned through internal complaint procedures constitute actionable retaliation under Title VII, because only a final, ultimate tangible employment action may be the basis for a claim of unlawful retaliation under Title VII.”