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Supreme Court Sides with Worker in Retaliation Suit


The Supreme Court has issued a major employment discrimination decision giving new protection from retaliation to workers who file discrimination claims. The ruling has civil rights lawyers applauding and the business community worrying.

NPR legal affairs correspondent Nina Totenberg reports.


The nation's civil rights laws bar not only discrimination but retaliation against those who file discrimination charges. At issue in this case, was what kind of employer actions are considered retaliation, under the law.

The business community, backed by the Bush administration, wanted to limit the definition of retaliation to actions that cause economic harm, like firing and demotion. That view got just one Supreme Court vote yesterday, cast by Justice Samuel Alito, the court's newest member. All other eight justices said the civil rights law is much broader and bans any action aimed at dissuading a reasonable person from filing a discrimination claim.

The decision came in the case of Sheila White, a 5'1" forklift operator, who was the first woman hired by the Burlington Northern Railroad to work on the tracks in Tennessee. When she complained of sexual harassment, she was reassigned from the forklift to repairing tracks, a job that meant lifting 100-pound jackhammers, hauling rocks, and longer hours. After she filed a retaliation claim with the EEOC, she was suspended without pay, only to be reinstated with back pay 37 days later.

Ms. SHEILA WHITE (Victim of Employer Retaliation): That 37 days were the worst days I want to think of. Two children in school, and I was the supporter, and no income coming in at all.

TOTENBERG: The company's position was that it had the right to move her to other duties and that she'd been compensated for her suspension. A jury, however, awarded her $43,000 in damages for illegal retaliation, and the company appealed - all the way to the Supreme Court.

Yesterday, writing for an eight-member court majority, Justice Stephen Breyer said that retaliation comes in all forms. It's not limited to matters of hiring, firing, demotion, or permanent pay loss. Being without pay for 37 days, he noted, can be a great hardship, as it was in this case. So too, is being transferred to a far more physically demanding, dirtier, and less prestigious job, as in this case.

But, Breyer said, there are limits to what may be considered retaliation. An action must be something beyond the ordinary tribulations of the workplace -something more than sporadic use of abusive language or petty slights. On the other hand, he said, what may be trivial to one worker may be seriously adverse to another. For example, a schedule change may make little difference to most workers, but may matter enormously to a young mother with school-aged children.

Civil rights lawyers were both relieved and elated: relieved that the court had so thoroughly rejected an effort to restrict civil rights laws.

Marsha Greenberger of the National Women's Law Center.

Ms. MARSHA GREENBERGER (Co-President, National Women's Law Center): The loophole that the administration tried to advance, along with the company, was rejected by all except Justice Alito.

TOTENBERG: Elated, too, that the court ruling will mark a sea change in the law, in many parts of the country, where lower courts had made retaliation claims hard to win.

Donald Donati represents Sheila White.

Mr. DONALD DONATI (Attorney for Sheila White): For employees, it's an amazing victory. It changes the course of law. It's going to make it easier for people to complain about discrimination.

TOTENBERG: But business leaders were worried by the court's decision, worried that anyone who files a discrimination charge will now be untouchable on the job. Steve Bokat is general counsel for the U.S. Chamber of Commerce.

Mr. STEVE BOKAT (General Council, U.S. Chamber of Commerce): I think the inclination, of course, is going to be to err on the side of not taking any even slightly adverse action against an employee with a pending discrimination charge.

TOTENBERG: As for Sheila White, the rigors of track work resulted in a permanent disability, and she's no longer employed. She said yesterday she's thrilled at her overwhelming Supreme Court victory.

Ms. WHITE: They all wanted justice, the fair way.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.