Striking back
The Supreme Court recently handed workers a 9-0 victory in a pivotal workplace discrimination case. But will the lower courts turn victory into defeat?
HONORING AMERICAN WORKERS long ago lost out to grilling hamburgers as the activity of choice on Labor Day. But, for those inclined to spend some of the holiday weekend considering the state of American labor, the Supreme Court has this year offered a decision that might be cause for celebration. In June, the court issued a 9-to-0 ruling in Burlington Northern v. Sheila White. In theory, the decision will make it easier to sue in federal court for workplace ``retaliation"-actions taken against employees who complain they've been discriminated against.
In theory. Those who noticed the somewhat obscure ruling hailed it as a victory for workers, one especially notable for being unanimous. But while we often think of the Supreme Court as having the final word, in fact, every opinion the court issues must then be interpreted and applied by the federal courts, both the circuit courts of appeal and the district, or trial, courts. And for decades, the Supreme Court and the other federal courts have disagreed over workplace discrimination-in particular, over how broadly to interpret Title VII of the 1964 Civil Rights Act, which banned discrimination based on race, color, religion, sex, or national origin.
The Supreme Court has tended to interpret those words in ways that should make it relatively easy for a worker's case to get in front of a jury. But many federal judges apply these decisions narrowly, tossing out employment discrimination cases before a jury can hear them. Some opposition comes from judges who tend to favor employers over employees. Others feel they're spending too much time on such cases, which now make up 10 percent of the federal docket. Whether Burlington Northern will make it easier for those claiming retaliation to have their day in court, then, depends on how the lower federal courts, historically unfriendly to such cases, interpret the high court's decision.
The particular question before the Supreme Court in Burlington Northern was about how expansively judges should interpret Title VII's Section 704, which bans retaliation. Congress issued the ban so that employers couldn't simply frighten workers out of their constitutional right to complain: Fire one whiner, and the rest will shut up. But what if the retaliation takes the form of something less than being fired, demoted, or docked? What if you complain about discrimination and then are put into a less-desirable job at the same rate of pay?
That's what happened to Sheila White. Both sides agreed on the basic facts in the case. In 1997, Memphis-based Burlington Northern hired White to operate a forklift in its rail yard. The other employees, all of them men and none qualified to run the forklift, were furious because forklift driver was considered the plum job. White's foreman and co-workers told her point-blank that they didn't think a woman should be working in a rail yard.
After White complained to Burlington officials, she was transferred off the forklift, replaced by a man, and put on dirtier and less respected tasks-pulling nails from track, clearing away brush and litter-albeit at the same wage. Later, after she filed a complaint with the federal Equal Employment Opportunity Commission, she was suspended for 37 days without pay, money she got back only after filing a union grievance and enduring a company investigation.
After a federal judge let the case go to trial, a Memphis jury found in her favor. Burlington Northern appealed, arguing that because White didn't ultimately lose any money, what she endured didn't count as retaliation under Title VII, and that only firing, demotion, or actual loss of pay should deserve a jury's award.
A divided three-judge panel of the Sixth Circuit Court of Appeals agreed with Burlington Northern, and reversed the district court. When the entire Sixth Circuit heard the case, however, the court reinstated the jury award-but was divided on what standards to establish for that magic word, ``retaliation."
In this, the Sixth Circuit reflected the rest of the federal courts. White had been lucky to live under the watch of the relatively moderate Sixth Circuit. Had she lived under the Fourth, Fifth, or Eighth Circuit Courts of Appeals-in, say, Virginia, Texas, or Minnesota respectively-she could have sued for retaliation only had she lost money after filing her discrimination claim. Simply being assigned to a nastier job wouldn't have gotten her in front of a jury.
So when the Supreme Court agreed to look at White's case, every employment lawyer in the country was watching to see what standards the top court would establish. Plaintiffs' lawyers wanted a broad standard, one that led quickly to a jury, and which took into account the many subtle and varied ways that an employer could intimidate workers. As Stephen Z. Chertkof, who helped write the National Employment Lawyers Association's amicus brief in Burlington Northern, put it, ``There are an infinite number of ways to send a message."
Employer-side lawyers worried about two different kinds of retaliation claims. The first come from canny employees who know they're about to get a bad review and file a discrimination claim so that if anything bad happens, it could be called retaliation. The second come from hypersensitive workers who interpret every slight as discrimination or retaliation.
``People who have complained once, in my experience-whether because they are the personality type that feels free to complain, or because once they've complained they feel very anxious-are very likely to perceive everything else that happens to them as retaliation," said Barbara B. Brown, a prominent employer-side lawyer. Lawyers like Brown were hoping for a nice clear line-for instance, firing or demotion counts as retaliation, but a transfer to different responsibilities does not.
But the Supreme Court sided with the workers. According to the majority opinion, written by Justice Stephen Breyer, it's retaliation if it made a ``material"-not just monetary-difference to you, enough that would make a ``reasonable worker" afraid to complain. Federal judges are still allowed to dismiss cases about ``trivial" retaliation, like co-workers who stop inviting you to lunch. But if that lunch is a weekly training session, or a networking event that you really need to attend if you're ever going to get promoted, you may still have a case.
Employers, meanwhile, can still change your schedule or transfer you to a different job-unless, as happened to Sheila White, the transfer is obviously a demotion. Or, as happened to one Illinois Department of Revenue office worker whose case was cited during oral arguments, the schedule change was a serious hardship because it forced her to choose between her child and her paycheck. As Justice Breyer wrote, ``Context matters."
Plaintiff-side employment lawyers cheered the decision. ``This is a great standard," said Joan Ehrlich, an Equal Employment Opportunity Commission lawyer based in San Francisco. ``It certainly broadens what the lower courts were trying to restrict."
From the employers' point of view, however, this is a glum prospect. The new standard ``is going to be a source of endless litigation and dispute," said Brown. Employer-side lawyer and mediator Hunter R. Hughes III agreed, adding, ``The problem with the decision is that the standard they've selected is so unclear that the employer, at least arguably, will have a very difficult time deciding when it's at risk and when it's not."
Consider the issue of the lunch that's a training session, explicitly mentioned in the opinion. Hughes explained, ``Well, I have no idea where the line is there. Lots of employees claim that going out to lunch with their boss is an important part of mentoring, and a training process." Does that mean that every disinvitation to lunch has to be reviewed by a jury?
Hughes says there's a very good reason that so many federal judges dislike employment discrimination claims: Most are too petty to be in court. ``Federal judges do not want to be involved in the day-to-day, run-of-the-mill, annoying, minor, and trivial disputes between employer and employee that have not a nickel's worth of import on someone's pay." That attitude is reflected in the two phrases, fished from past Supreme Court opinions, that judges and appeals courts commonly use when rejecting a job discrimination case: ``The federal courts shouldn't be a superpersonnel office" and ``Title VII is not a general civility code."
Observers agree that many more retaliation cases will be streaming into the federal courts in the wake of Burlington Northern, to the chagrin of many federal judges. Some of them will no doubt curse the Supreme Court for opening the floodgates.
But the Supreme Court has a longer-term approach to keeping discrimination claims out of the courts. The high court's hope, as expressed in previous Title VII decisions, is to have companies set up better systems for preventing discrimination, and for soliciting and responding to complaints. An entire line of Supreme Court decisions, says Brown, shows that, ``What they want is for employers to set up processes internally that work. They want to get these things out of court."
Doing that means employees must feel free to complain and managers must be given support and training in responding reasonably to those complaints. Sure, that's complicated. But, says Columbia University law professor Susan P. Sturm, if businesses can create systems to restock shelves overnight, track individual customer purchases, or do any of the other creative things they do to gain a competitive advantage, then they can create effective systems for helping their employees work well together-even when the complaints are based on the knotty issues of race, sex, religion, or national origin.
``It's hard," she says. ``But if they can manage this, they can manage everything a lot better. Employers with high rates of discrimination complaints are also notoriously badly managed." She points out that Burlington Northern admitted that Sheila White had been the only qualified forklift driver on her work crew.
``Someone unqualified was put in the job, just because he was a man. Wouldn't an employer want to know there were decisions being made how to allocate work that had nothing to do with who was qualified?"
E.J. Graff is senior researcher at the Brandeis Institute for Investigative Justice. Most recently she collaborated on Evelyn Murphy's book ``Getting Even: Why Women Still Don't Get Paid Like Men-And What To Do About It," which appears in paperback this week. 