Supreme Court Asked to Uphold EEOC Standard for Retaliation

The Supreme Court will hear oral argument on what is unlawful retaliation under the federal law prohibiting discrimination in the workplace on April 17, according to a news report.

The Lawyers’ Committee urged the Court to uphold the standard developed by the Equal Employment Opportunity Commission (“EEOC”) which provides that employers would be prohibited from taking any action “reasonably likely to deter the exercise of rights under Title VII,” the news report said.   The standard provides for a broad definition of retaliation.

The issue currently before the Supreme Court is Burlington Northern and Santa Fe Railway v. White, Docket No. 05-0259.   The original suit was filed by Sheila White, who had been the only female forklift operator at Burlington Northern’s train yard in Memphis, Tennessee. When she complained of sexual harassment by her supervisor, the harasser was disciplined and she was transferred to a more strenuous job as a track laborer. Later, White was suspended for 37 days for alleged insubordination, but the company later decided that she had not been insubordinate, and she was compensated for her lost pay. White sued Burlington Northern, claiming that the job reassignment and pay suspension constituted retaliation under Title VII of the Civil Rights Act of 1964.

The EEOC argued for its standard to the lower court, however, the Department of Justice rejected its standard.   The Department’s brief endorsed a more stringent standard that employers would be liable only for retaliation that took the form of a “materially adverse change in terms of employment.”

Burlington Northern and other employer groups have asked the Supreme Court to adopt an even more stringent “ultimate employment decision” standard, under which only hiring, firing, demoting, failing to promote, or other very serious actions would be considered an adverse change (See  Business Groups Ask for Dismissal of Worker Retaliation Ruling ).