- The Washington Times - Monday, April 17, 2006

ASSOCIATED PRESS

U.S. businesses are confronting a dilemma: how to maintain control in the workplace after an employee complains of sex or race discrimination without drawing a more damning charge of retaliation.

Retaliation claims have risen dramatically, and the Supreme Court yesterday took up the issue of what legal standard should be used to evaluate the seriousness of changes in employment made by supervisors who may be angry about an employee’s discrimination complaint.

A decision by the court could affect the balance of power in government and private workplaces nationwide.

The Burlington Northern Santa Fe Railway Co. wants justices to overturn a decision by the Cincinnati-based 6th U.S. Circuit Court of Appeals that found that suspending a female forklift operator for 37 days without pay and transferring her to a more physically demanding job were “materially adverse” changes in her employment.

Businesses warn that they will be hamstrung if justices side with workers and create a “super-protected class” of employees who can’t be disciplined or transferred once they file a discrimination complaint.

Attorneys for the railroad predicted that a ruling in favor of forklift operator Sheila White could lead to more lawsuits.

From 1992 to 2004, they said, employees filed nearly twice as many complaints with the government charging retaliation by employers, making it the fastest-growing category of complaints in cases related to job discrimination.

Some of the Supreme Court justices expressed sympathy yesterday for Ms. White, who was transferred to a harder job and then suspended without pay during the Christmas holiday after she accused her supervisor of sexually harassing her.

Justice Antonin Scalia joined Justice Ruth Bader Ginsburg in recognizing the hardship that the 37-day suspension caused Ms. White as the Memphis, Tenn., forklift operator worried about how she would feed her children or buy holiday presents for them.

But the conservative trio of Justice Scalia, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. also voiced concern about whether Congress intended to shield workers who file sex- or race-discrimination claims from any changes in their jobs.

The justices are being asked to set the legal standard for evaluating the seriousness of changes in employment made by supervisors who may be angry about a worker’s discrimination complaint.

Lawyer Donald Donati, who represents Ms. White, warned the high court to avoid setting hard and fast definitions of what is or isn’t retaliation. He said he fears employers will use such standards to intimidate workers into remaining silent about discrimination.

“Retaliation is as varied as the human imagination,” Mr. Donati said.

Lawyer Carter Phillips, who represents the Burlington Northern Santa Fe Railway, conceded that a jury would be able to consider a case in which a supervisor excluded an employee who complained of discrimination from a weekly lunch that all other workers attended.

But Mr. Phillips warned justices that a decision favoring workers likely will make matters worse for businesses. He said retaliation claims more than doubled in the past decade, comprise more than 30 percent of the Equal Employment Opportunity Commission’s caseload and cost more than $130,000 each to resolve.

Ms. White, the only woman working at the railroad yard, complained that her foreman was sexually harassing her and that other workers disparaged her by saying a rail yard was no place for a woman.

A company investigation led to the foreman’s suspension and enrollment in sensitivity classes. But the railroad also transferred Ms. White to work as a regular track worker, a more physically difficult job than operating a forklift.

The railroad eventually rescinded its decision to suspend Ms. White — clearing her of insubordination charges — and compensated her for back pay.

A jury hearing her lawsuit rejected the sex-discrimination charge but found in her favor on the retaliation claim, awarding her $43,000.

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