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Court Expands Right to Sue Over Retaliation on the Job

Charles Lane
Washington Post

The Supreme Court made it easier yesterday for workers in most parts of the country to sue employers for retaliating against them when they complain about sexual harassment or other discrimination. The court ruled that employees may collect damages, even in some cases where the punishment did not involve getting fired or losing wages.

The decision, which had the full support of eight justices, expands the legal rights of millions of workers who are covered by Title VII of the 1964 Civil Rights Act, the main federal law against job discrimination, and their employers. Justice Samuel A. Alito Jr. agreed with the result but differed from the majority reasoning.

By setting a single national rule to define what constitutes retaliation, the court brought a measure of clarity to an area of law that generates thousands of cases per year, but had produced conflicting interpretations of Title VII in the lower courts.

Now, many retaliation cases that had previously been dismissed because the facts were not in dispute are likely to go to trial. That will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies' costs for lawyers and defensive management practices.

In the case decided yesterday, Burlington Northern and Santa Fe Railway Co. v. White , No. 05-259, forklift operator Sheila White had won $43,500 in damages and medical expenses from a federal jury, which found that her boss responded to her complaints about co-workers' sexual harassment by transferring her to a more arduous job and suspending her for 37 days without pay.

She was later reinstated and awarded back pay, and Burlington Northern argued in the Supreme Court that this ending should have negated her retaliation suit.

The railroad said that the law requires a link between the alleged retaliation and a permanent employment decision such as termination or a pay cut. The Bush administration agreed with that view, though it believed that White should win her case, even under the company's interpretation.

But Justice Stephen G. Breyer wrote that, under the circumstances, the railroad's actions would have been enough to deter a reasonable employee from making a charge in the first place. This, he wrote, is the proper definition of illegal retaliation, and should set the standard for all future cases.

Without a robust anti-retaliation law, Breyer noted, the law's basic purposes could be undercut, since fewer victims might complain.

"Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends," Breyer wrote.

Breyer concluded that even some actions that take place outside the workplace can qualify as retaliation, if they are serious enough. As an example, he cited a previous case in which an employer had filed a false criminal charge against an employee who had complained about discrimination.

"Justice Breyer's standard opens the door to claims based on actions that before today companies would not have suspected were actionable," said Daniel P. Westman, a lawyer with the firm Morrison & Foerster who represents employers in job discrimination cases. "Companies will have to be much more careful as to how they manage employees who are covered by Title VII."

The opinion also reflected a widely shared sense at the court that employment discrimination law has to be flexible enough to account for the realities of a diverse modern workplace, in which the same action by an employer could have different effects depending on the employee.

Citing a past case in which a mother of a disabled child had sued for retaliation because she was put on a shift that made it hard for her to spend days at home, Breyer wrote that "a schedule change may make little difference to many workers, but may matter enormously to a young mother with school age children."

Even refusing to invite a worker to lunch can be retaliation, Breyer wrote, if it is "a weekly training lunch that contributes significantly to the employee's professional advancement."

"All people protected against job discrimination benefit from this decision, whether it be sexual harassment, or discrimination in hiring, promotions or pay," said Marcia D. Greenberger, co-president of the National Women's Law Center, which filed a friend of the court brief supporting White on behalf of more than 30 organizations. "If the Court had upheld the standard urged by the railroad and the administration, it would have created a hole in civil rights protections big enough to drive a forklift through."

Breyer's opinion was endorsed by a broad liberal-conservative majority on the court, with only Alito writing in a concurring opinion that he saw "practical problems" with the majority's approach. Like the Bush administration, Alito argued that retaliation claims should be limited to those involving the terms or conditions of employment -- but that White should win the case, even under that more restrictive legal standard.

In its ruling yesterday, the court adopted the relatively pro-plaintiff rule that had been previously outlined by the federal circuit courts of appeals based in Chicago and Washington, D.C., and rejected the more restrictive standard that had prevailed in five other regions of the country.

Only in the Western states could yesterday's ruling limit retaliation suits, because the San Francisco-based appeals court had endorsed an even more pro-plaintiff standard than the Chicago and D.C. courts.

Unlawful retaliation lawsuits were already somewhat easier for employees to win than lawsuits claiming discrimination only.

As a result, retaliation claims under Title VII nearly doubled between 1992 and 2005, from 10,499 to 19,429, according to the Equal Employment Opportunity Commission's caseload. They constitute a quarter of the EEOC's cases.

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