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"Adverse employment action" argument in Supreme Court
April 11, 2006 by Ross Runkel at LawMemo
In the most important employment law case of the year, the US Supreme Court hears arguments in Burlington Northern v. White on Monday, April 17. Issue: What's an adverse employment action in a retaliation case?
I've looked at the briefs, and we're going to see a great argument. The issue is of extraordinary importance. Often an employee loses on the merits of a claim for sex discrimination or race discrimination, but can win on a claim that the employer retaliated for filing an EEOC charge or for complaining.
In a regular discrimination suit or a harassment suit brought under Title VII Section 703, it's clear that the employee must prove that the employer took an action that has an effect on terms and conditions of employment - firing, transfer to a job with significantly different responsibilities, significant change in benefits, etc.
Retaliation suits come under Section 704. Is the standard different? We'll see.
History of Burlington Northern v. White: A jury found in White's favor on her claim of retaliation for filing an EEOC charge. The en banc 6th Circuit affirmed the verdict. The issue was whether two actions were adverse employment actions under Title VII Section 704.
- (1) White was working as a fork lift operator, and the employer transferred her to work as a standard track laborer.
- (2) Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.
Lower courts are in disarray, adopting various standards for deciding whether there has bee an adverse employment action. There are main three standards:
- Ultimate employment decision. It has to be a discharge or failure to promote. Can't be lesser items such as lateral transfers, temporary suspensions. Burlington likes this one, and says the Court should adopt the same test it used in Burlington Industries v. Ellerth, 524 US 742 (1998).
- Materially adverse change. The 6th Circuit used this one in the decision below.
- Reasonably likely to deter employees from engaging in protected activity. The EEOC likes this one.
- White is pushing for an "any retaliatory act" test, but probably would settle for the "reasonably likely to deter" test.
I've previously explained why I think the test in Section 704 should be much more employee-friendly than the Section 703 test. In a nutshell: (1) The text of 704 simply forbids discrimination, while 703 forbids discrimination with respect to terms and conditions of employment. (2) Section 704 is designed to protect the system (courts, EEOC, and employees who protest) against employer interference, which is more important than protecting an individual employee from an employer's race or sex discrimination.
No matter which test the Court adopts, the facts have to applied. Burlington makes some interesting arguments:
- White was re-assigned from driving a lift truck to doing track work. That cannot possibly be an adverse employment action because doing track work was part of her job description and was what she was hired to do. My view: The Court should look at what actually took place rather than the formal description of the employee's job.
- White was suspended and then reinstated with back pay, all under the system set up in a collective bargaining agreement. Following a collectively bargained process should not be considered an adverse employment action. My view: A contract with a union should not insulate an employer from Title VII liability.
Here's what the Court's job boils down to:
- Decide whether Section 704 "discrimination" means the same thing as it does in Section 703.
- If it means something less, then what does it mean?
- Figure out a way for lower courts to screen out allegations involving minor inconvenience or bruised egos.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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