Court will look at retaliation in sex bias cases

Following a string of Supreme Court rulings that have helped redefine employment law, the high court will hear arguments next month in a case that could clarify whether employers are guilty of retaliation if they transfer a worker who has filed a sexual harassment or discrimination complaint.

''This is a big deal," said Josh Davis, a director in the employment law group at Goulston & Storrs in Boston. ''Employers want a clear standard as to what constitutes retaliation. They know that if they understand where they could be liable, they can take corrective action."

Monica Halas, senior employment attorney at Greater Boston Legal Services, said the decision could further limit the scope of laws designed to guard against workplace discrimination at a time when retaliation cases are rising. In 2005, for example, the Equal Employment Opportunity Commission received 22,278 retaliation complaints, up from 11,096 in 1992.

The matter of what constitutes retaliation under antidiscrimination laws is presented to the Supreme Court in the case of Sheila White v. the Burlington Northern Santa Fe Railway. White, who was working in Memphis, alleged in 1997 that her employer retaliated against her when it changed her job to track laborer and then fired her after she filed a sexual harassment charge against a supervisor.

After hearing testimony in her case, a federal jury awarded White $43,000 in damages for pay she lost during her termination, but disregarded her sexual harassment charges. The case went to the US Court of Appeals for the Sixth Circuit, which ruled that White's termination and job transfer were forms of retaliation. The court also acknowledged that the country's 13 circuit courts of appeals were divided over the definition of retaliation, prompting the US Supreme Court to consider the case. The high court has scheduled arguments in that case for April 17.

Retaliation cases can evolve from a variety of circumstances. Take the case of Linda Sundheim, a factory worker at a Massachusetts firm. She is alleging in a complaint filed with the Massachusetts Commission Against Discrimination last year that she was demoted after accusing her manager of using offensive language and badgering her with stories about his sexual games. Her case is pending.

In a separate case, janitor Ana Rivas of Lowell, filed an MCAD claim last summer, alleging that she was paid less than males at a college in Waltham. Rivas, who was later fired, has since amended her complaint to include a charge of retaliation because she lost her job and her husband was transferred to another site several miles away.

Halas said the court's decision could guide state judges and influence the cases of Sundheim and Riva, but it would have a more direct impact on retaliation cases pending in federal courts.

A decision in favor of employers could discourage workers from bringing workplace bias complaints, she said.

''When workers come forward to make a complaint or support another worker who has made a complaint, they know they are putting their jobs on the line," said Halas. ''Without strong anti-retaliation laws, their rights will no longer be secure. Protection is critical in the workplace."

Employers say they are severely limited by the scope of employment law concerning retaliation. ''Once an employee has complained of discrimination, virtually every subsequent change in that employee's assigned job duties becomes a potential basis for a retaliation claim," the Equal Employment Advisory Council, a national employers group, said in a friend-of-the-court brief.

The Supreme Court's ruling on retaliation will be among several in recent years that either have narrowed the scope of employment laws or further clarified their meaning. In a case that increased compensation to employees, for example, the high court ruled in November that companies must pay workers for time spent waiting for work or walking to a job site.

By contrast, a 2004 decision barred younger employees from suing employers because they offered special benefits to senior workers that were designed to encourage them to retire. That case secured protections for longtime employees under the Older Workers of America Act.

And, in a 2003 case, the US Supreme Court ruled that Raytheon Co. did not act illegally when it refused to rehire a recovering drug addict who had broken a company policy.

That decision was a victory for employers.

Diane E. Lewis can be reached at dlewis@globe.com.