US Supreme Court Widens Workplace Retaliation Protections

June 22, 2006 ( - In a closely watched case involving workplace retaliation against whistleblowers, the US Supreme Court on Thursday broadened the legal standard for employees filing retaliation legal claims.

Justices upheld a $43,000 jury award for Sheila White, a female forklift operator and the only woman working in the rail yard for the Burlington Northern Santa Fe Railway in Memphis, Tennessee. White later alleged she was the victim of improper retaliation when she was transferred to a more physical job after she sued her employer for sexual harassment.

By a 9-0 vote, the High Court ruled that the railway improperly punished White with a suspension for 37 days over a Christmas holiday and by transferring her to being a regular track worker – a more physical assignment.

The White ruling (See Supreme Court Asked to Uphold EEOC Standard for Retaliation ) sets a new standard which specifies that employers are liable for unlawful retaliation if their actions “interfere with an employee’s efforts” to ensure that he or she is not discriminated against in the workplace,” Justice Stephen Breyer wrote in the court opinion .

Breyer acknowledged in the ruling that the company gave White back pay. But he said she and her family still had to live without any income for 37 days, not knowing when or if she would return to work.

“Many reasonable employees would find a month without a paycheck to be a serious hardship,” the justice wrote. “An indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay.”

‘Petty Slights’

In further explaining his ruling, Breyer said employees who complain of discrimination are not immune from “those petty slights or minor annoyances that often take place at work and that all employees experience.”

Trial judges in illegal retaliation suits now have to determine on a case-by-case basis whether “reasonable” employees would be intimidated by actions taken by employers against them.

“Context matters,” Breyer wrote.

For example, a schedule change may not anger certain workers, he said, but it may matter greatly to a young mother with small children. Or, the justice offered, a supervisor’s failure to invite a worker to lunch would seem trivial unless the luncheon was a weekly training session crucial to the employee’s advancement.

According to the ruling, a company probe sparked by White’s sexual harassment allegations led to the suspension of a foreman and enrollment in sensitivity classes. The railroad eventually rescinded its decision to suspend White – clearing her of insubordination charges – and compensated her for back pay. A jury rejected her sex discrimination charge but found in her favor on the retaliation claim.