Workplace Articles By BCC
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Illustrating the need for Supreme Court direction in this area, five of the 13 6th Circuit judges hearing the case argued that the 6th Circuit should have adopted the EEOC’s “reasonably likely to deter” test because it is more consistent with the language of Title VII, congressional intent and the Supreme Court case law-even though they agreed with the outcome of the appeal.
According to the facts of the case, Sheila White was the only female forklift operator at the Tennessee Yard of Burlington Northern. White said her supervisor repeatedly told her women should not be working in the maintenance-of-way department and made insulting and inappropriate comments to her in front of male colleagues. The supervisor was suspended for 10 days and was ordered to attend sexual harassment training. However, White was removed from forklift duty and assigned to perform only standard track laborer tasks. The road master said a “more senior man” should have the “less arduous and cleaner job” of forklift operator.
White sued under Title VII, alleging retaliation and was then suspended for 37 days for being insubordinate when she disagreed with her supervisor. She filed an internal grievance which concluded she was not insubordinate. She was awarded back pay for 37 days and filed an additional retaliation charge as a result of the suspension. The district court found in her favor and awarded her $43,500 in compensatory damages and $3,250 in medical damages. The 6th Circuit affirmed the decision which was appealed to the Supreme Court where it was affirmed.
The company argued there should be a link between the challenged retaliatory action and the terms, conditions or status of employment to establish unlawful retaliation. The Supreme Court adopted a lower standard, determining that Title VII’s prohibition on retaliation provides broad protection beyond actions directly related to employment if the actions would dissuade a reasonable worker from bringing a discrimination charge. This standard is consistent with rulings in the 7th Circuit, the D. C. Circuit as well as the EEOC.
The company further argued that a reassignment of duties could not be retaliation when the former and present duties fell within the same job description. “We do not see why that is so,” the court stated. “Almost every job category involves some responsibilities and duties that are less desirable than others.” The court also stated, “Context matters. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.” [Emphasis added by the authors.]