Supreme Court Hears Discrimination Retaliation Case

GWEN IFILL:

The case involves Sheila White, a woman who lost her job as a railroad forklift operator after she filed a sexual harassment complaint in 1997. She sued, arguing the company retaliated against her for filing the complaint by transferring her to a more physically demanding job.

A jury agreed that the transfer constituted retaliation, awarding her $43,000. The railroad company's appeal came before the Supreme Court today. Marcia Coyle of the National Journal was there, and she joins us now.

So, Marcia, was this a case about discrimination or about retaliation or both?

MARCIA COYLE, National Law Journal:

Well, in a way, it's about both, but the issue before the court is really about retaliation and what kind of actions by an employer equal retaliation.

At the heart of the case is Title VII of the Civil Rights Act of 1964. It has two very important provisions. The heart of Title VII, the core, is the ban on discrimination by employers in the terms, conditions and privileges of employment on the basis of race, color, religion, gender and national origin.

But there's a separate provision in Title VII that also says it's illegal for an employer to discriminate or retaliate against anyone who files a discrimination complaint or anyone who assists, or testifies, or participates in a Title VII proceeding, for example a co-worker.

That's become known as the anti-retaliation provision. It's a very straightforward provision; it has no limiting language on it, like terms, conditions, privileges; there are no exceptions in the act. And Congress didn't write a test or a laundry list of actions that constitute retaliation.

GWEN IFILL:

What kind of sexual harassment was she a victim of? Because that's the part that's clear; she won that part of the case.

MARCIA COYLE:

Soon after she started as a forklift operator, she was subjected to discussions of her period in front of male co-workers, daily statements by her foreman that she didn't belong in the job because she was a woman. She was asked at one point to shine a flashlight on a male co-worker who was urinating. They did not provide bathroom facilities that would protect her privacy.

GWEN IFILL:

So that was a slam-dunk part of the case. The more difficult part is: Who gets to define what retaliation is? So how did that play out in court today?

MARCIA COYLE:

Well, the railroad is really focusing on two acts here that Ms. White complained of: the transfer in the job from forklift operator to track laborer, and also she was suspended without pay for 37 days. After she filed a retaliation complaint with the EEOC, she was suspended on an alleged act of insubordination.

GWEN IFILL:

And it happened right away?

MARCIA COYLE:

It did. Right after she filed her retaliation complaint, that happened. She was later found — she was cleared of the insubordination charge, reinstated.

The railroad here argued that the court should apply this kind of a standard: The employer's act should amount to a materially adverse change in the employee's conditions and terms of employment.

The railroad said that didn't happen here. Being switched from forklift operator to track laborer, it was under the same job category, the same pay, same benefits, no economic effect, no material change.

The suspension, the railroad said, this was really an interim step. She had filed a grievance. The company had a grievance committee look into it. Once they found it was unfounded, they reinstated her with full pay, back pay. It cured the problem. The justices had some problems with this approach.

GWEN IFILL:

Well, it's interesting, because Justice Ginsberg, in particular, has a history on these kinds of cases in her former life, before she joined the court, as a lawyer for the ACLU.

MARCIA COYLE:

Yes, right, she was head of the Women's Rights Project. She is responsible for many of the decisions of the Supreme Court that changed sex stereotyping in the law.

She honed in right away on the suspension aspect and the argument that this was not an official act, it was an interim step. She said: This woman was suspended for 37 days without pay. It happened over a holiday period. She had three children. She didn't know if she had money to feed them. She couldn't provide Christmas presents.

GWEN IFILL:

So even if she got the money back later and she got the job back later, she was arguing there was still some adverse harm done?

MARCIA COYLE:

The employer, according to Justice Ginsberg, did not cure this problem, and the problem happened as soon as she was suspended. This was an official act.

GWEN IFILL:

Did any justices argue the flip side of that?

MARCIA COYLE:

Justice Scalia was concerned about, you know, where do you draw the line on what is not trivial and what is substantive? When Ms. White's lawyer got up to argue, he argued for a test that was, what he said, really the text of the statute. It says: No action. You cannot discriminate. You cannot retaliate against.

And Justice Scalia said: Well, what if I was your supervisor and you filed a harassment complaint against me, and the next day I stopped smiling at you? Is that retaliation?

GWEN IFILL:

And the answer?

MARCIA COYLE:

No, it's not, because you need an official action. Mr. Don Donati, who argued for Ms. White, said that's just not retaliation and no court would find that it was retaliation.

He said that you had to take this broad approach to the retaliation provision, because it protects the core of Title VII, the filing of discrimination complaints. He said it's very easy to intimidate a worker not to file a discrimination complaint, and it takes much less intimidation to stop a co-worker or a witness from testifying.

GWEN IFILL:

So the dilemma for the court, as they try to come up with some sort of conclusion, is to figure out where that line should be drawn?

MARCIA COYLE:

Exactly, exactly. And my sense — oh, also, we should mention the Bush administration is in the case.

GWEN IFILL:

Oh, right.

MARCIA COYLE:

And it has its foot in each camp, in a way. It is arguing for the same test or standard that the railroad company wants, but it wants under that standard for Sheila White to win, because it does believe, as a jury found, that she was materially adversely affected by what the company did here.

My sense, after the argument, is this is very difficult line-drawing, and it's why the federal courts in general have been all over the map. They've developed at least three tests, and the court will have to settle on one.

If it sets the bar too high for employees, then a lot of retaliation by employers may go by the by and workers will be deterred from filing; if it sets the bar too low, then courts may become super-human relations management agencies trying to find out what's trivial and what's not.

GWEN IFILL:

It will be interesting to see how they set that bar. Thank you, Marcia Coyle.

MARCIA COYLE:

You're welcome.