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Supreme Court Hears Employee Retaliation Suit

STEVE INSKEEP, Host:

In this country, the U.S. Supreme Court examines employment discrimination today. Here's the question at issue: if you charge your boss with discrimination, under what circumstances can you also sue for retaliation?

The court's decision could affect tens of thousands of employment cases and could affect retaliation claims brought under dozens of other federal laws. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: The nation's civil rights laws bar not only discrimination, but also retaliation against employees who filed discrimination charges. Today's case tests what kind of employer actions are considered retaliation under the law. The case was brought by Sheila White, a 5-foot, 1-inch mother of three, who at age 41 went to work for the Burlington Northern Santa Fe Railroad Company. On her previous job, she'd been a forklift operator and she says she was hired for the same task at Burlington Northern, the first woman hired to work on the tracks.

Burlington Northern says she was hired for a mix of track duties, including forklift operator. Two months into her job, she complained to company officials that she was being sexually harassed. Her supervisor was suspended for ten days and she was reassigned.

SHEILA WHITE: I was told the very same day that I would no longer be operating the forklift. They were putting me on the railroad tracks.

TOGENBERG: That meant lifting hundred-pound jackhammers, hauling rocks, jumping on and off trains, constant travel, and longer hours. She filed a retaliation claim with the EEOC, and a week later she was suspended for insubordination. She challenged the suspension; 37 days later, a company hearing officer ruled in her favor and reinstated her with back pay.

WHITE: That 37 days were the worst days I want to think of. Two children in school, and I was the supporter, and no income coming in at all.

TOTENBERG: The Company's position is that the reinstatement with back pay made White whole.

Carter Phillips represents Burlington Northern.

CARTER PHILLIPS: At the end of it, she ended up precisely where she would have been otherwise.

TOTENBERG: A federal jury didn't agree, awarding White $43,000 dollars to compensate her for illegal retaliation by her employer.

A federal appeals court upheld the award, ruling, among other things, that White's forklift job, though technically in the same job category as a track worker, was in fact an entirely different, physically easier job, and that by permanently removing her from the forklift job, as well as suspending her, the company had retaliated against her.

Today, Burlington Northern's Mr. Phillips will tell the Supreme Court the lower court was wrong.

PHILLIPS: Our argument there is that that's not the right way to characterize it. She was hired as a laborer. She applied for the job of laborer. She didn't apply for the job of forklift operator. There wasn't such a job at the time.

TOTENBERG: Phillips will tell the high court that Congress did not intend to authorize retaliation lawsuits unless there's been some change in the conditions or privileges of employment, some act involving hiring, firing, promotion, demotion, acts which typically have an economic effect on an employee.

But Sheila White's lawyer, Donald Donati, counters that Congress never intended such a limit on retaliation suits.

DONALD DONATI: The reason is that retaliation comes in all types and forms. The only limitation is what the human imagination can devise.

TOTENBERG: Burlington's Phillips responds that in the last twelve years the number of retaliation lawsuits has doubled from, 10,000 to 20,000, because increasingly trivial matters have become the subject of such lawsuits.

PHILLIPS: Every slight, whatever that means, will be a source of retaliation. And if you adopt a standard that says that everything that is viewed as adverse by the employee is a basis for retaliation, the 100 percent increase in claims for retaliation that you've seen in the last few years will be a 1,000 percent increase.

TOTENBERG: But Sheila White does not see her case as involving small slights.

WHITE: Small? I consider my complaints very large for all the abuse and harassment and treatment I have received out there. Day by day it went to a different level, higher and higher, where they were trying to force me out.

TOTENBERG: And her lawyer, Mr. Donati, says some 42 other federal laws are modeled on this one, laws involving regulation of health, safety, even the securities industry, all laws written to protect from retaliation individuals who bring enforcement complaints.

DONATI: Without that protection the underlying statutes will be severely diminished, because it doesn't take much to have an individual intimidated and fearful about the consequences. If employees don't know they'll be protected by the statute, they'll stop bringing these claims.

TOTENBERG: A decision in the retaliation case is expected by summer.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.