Jottings By An Employer's Lawyer

Friday, June 23, 2006

Burlington Northern v. White -- The Day After


It will be more important to see how the courts react than the lawyers and the press, but it hasn't taken long for the latter to start predicting dire results for employers as a result of yesterday's Supreme Court ruling. A sampling of headlines and quotes:


  • From the Houston Chronicle quoting plaintiff's lawyer Andrew Golub: "Golub said employers now face the potential of having to go to trial over the 'little things' like moving complaining employees from a corner office to a cubicle, putting them on the graveyard shift or even taking away their coffee breaks." Ruling widens ability to sue. [Not quite what the Court said when it emphasized the importance of distinguishing the trivial from the significant.]
  • "The high court chose the most employee-friendly standard, lawyers on both sides agreed." High Court Widens Protection for Workers Against retaliation. Chicago Tribune. [Not correct, the Court rejected a more liberal standard advocated by EEOC and utilized by the 9th Circuit.]
  • "Employees who have discrimination complaints often cry retaliation," said Mimi Moore, a management lawyer in Chicago. "And now they will have a much better chance of getting their cases before a jury." Ruling protects workers from retaliation Firms can't punish employees who file bias complaints, San Francisco Chronicle. [Interesting because arguably the law is now tougher for employees in the 9th Circuit, where the San Francisco Chronicle is published, than it was before yesterday's ruling.]
  • However Ms. Moore was also quoted as saying the ruling might not be such bad news for employers, ""Employers now know that there is an objective standard that has to be met for someone to succeed in a retaliation claim," she said, noting that workers could not now claim that "trivial" actions constituted retaliation. US workers win more power in job discrimination lawsuits, MSNBC.
  • "Now, many retaliation cases that had previously been dismissed are likely to go to trial. That will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies' costs for lawyers and defensive management practices." Court makes it easier for workers to sue. Seattle Times [Undoubtedly a true statement, that will be made even more so by reports overstating the wording of the decision.]
  • "This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview. Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace. New York Times.
  • And from the even when they win, they still have to get in their shots department - "How rightwing is the Bush administration when it argues to screw workers on behalf of corporate American-- and even Scalia and his rightwing brethren reject its position? In a sea of worsening legal doctrine on discrimination, the Supreme Court just handed down a decision, by a 9-0 vote, that clearly protects employees who demand that their employers end discrimination in the workplace from any kind of retaliation. ....

    "I should say that while the decision is officially 9-0, on some parts of the decision, it was 8-1 with Alito taking a more rightwing position of limiting what would count as retaliation, limiting it to economic losses by plaintiffs and giving employers a free ride to punish employees in all sorts of non-economic ways. So Alito may be making his bid to become the wingnut holding up the right pole of the Court. "BIG Win for Employees at Supreme Court, by blogger Nathan Newman.

From this employer's lawyer's perspective -- Burlington Northern v. White is clearly a substantial development that any employer must take into account -- but let's wait for the courts, the only group who's opinion really matters, to weigh in before hitting the panic button.

It's also a reminder to be careful what you ask for -- for all contemplating how bad this is for employers, remember who asked the Supreme Court to consider the question.

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