Jottings By An Employer's Lawyer

Monday, April 17, 2006

Most Important Argument for Employers in Supreme Court's Term Held Today


That would be in the case tailored to allow the Court to give guidance to the divided appeals courts on what exactly constitutes an adverse employment action for purposes of retaliation statutes. See my earlier report on White v. Burlington Northern here.

Basically, Ms. White a forklift operator complained of sexual harassment. Later she was moved to another position, in the same job classification, but one that required more physical labor. She also was suspended without pay for 37 days for insubordination, although the suspension was later changed to a paid suspension.

Although certainly oral questions are not a decisive clue to how the opinion will turn out, the early reports don't do a lot to relieve concerns among employer groups. Among the questions and answers being quoted in various reports are the following:


Justice Scalia
He is concerned jurors could find in favor of workers and award damages for "every little thing." What, he asked, would stop a jury from awarding damages if an angry supervisor stopped saying "Good Morning" or taking to lunch an employee who alleged discrimination. When White's counsel suggested that the Court should not be too precise because "retaliation is as varied as the human imagination," Justice Scalia replied, "I worry about that. Jurors can have wonderful imaginations."

He also expressed concerns about giving a wide variance for juries, "You say every claim is going to be a jury trial. I mean, come on.'' At the same time, Scalia questioned the railroad's contention that federal law allows retaliation claims only when an employer's action would be enough to warrant a discrimination suit. He also said a suspension without pay "would be a real hardship'' for some people, even if the company later reinstates the worker and reinstates the worker and provides back pay.

Justice Souter on the differences in the two jobs

"Isn't there a difference between sitting on a forklift and picking up steel rails with your bare hands?''
Justice Ginsburg shared some of the concerns of Justice Scalia:
"She understandably experienced much strain in that time. She worried about how she would be able to feed her children.''
Chief Justice Roberts on how the jobs were the same classification

"If the jobs really were that different, the union would have categorized them as different."

Justice Alito

Asked several questions that indicated skepticism of Burlington Northern's arguments. He said Congress might not have wanted workers to ``suffer at all'' after complaining of discrimination.

Some of the early reports can be found here, the AP story, Bloomberg.com and BusinessWeek.

One possibility that would allow Ms. White to maintain her $43,000 jury award but still allow courts to maintain a close reign would be to find that the lengthy unpaid suspension, even if reversed is actionable, but a job transfer without a loss of pay would not be.

Although the Roberts' court seems to be returning decisions faster than we have become accustomed to, given the potential ramifications of this decision and the many different ways this could be sliced, plus the rush of other term end decisions, I would not be surprised if this is one to one of the last decisions of this term.

UPDATE: Nina Totenberg, NPR's Supreme Court Reporter has even more quotes here.

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