The Supreme Court's recent ruling in Burlington Northern v. White set a nationwide standard for evaluating employee charges of retaliation. And, the ruling was unanimous, bearing the stamp of justices of all persuasions. So what is the standard, and what are the implications for employers? Here we review the Court's decision and provide analysis from an employment law expert, who illustrates the role of context in such cases.

Background

Sheila White, the first and only female employee in Burlington Northern & Santa Fe's Tennessee rail yard, was hired in June 1997 because of her experience in operating a forklift. On the job, however, she encountered sexual harassment from her supervisor, who repeatedly said that women didn't belong in maintenance jobs. Other employees told her that women didn't belong in any railroad job.

White complained in September about her boss's treatment of her, and he was disciplined with harassment training and an unpaid suspension. But soon after that, White lost her job as forklift operator for a dirtier, more difficult position in track labor. In the days that followed, there was a dispute about which male driver would give her a ride to the work site. A manager decided that White had been insubordinate and suspended her--indefinitely and without pay. The suspension began on December 11 and was not lifted for 37 days.

She grieved the action and ultimately won reinstatement and back pay. But she complained anyway to the Equal Employment Opportunity Commission and then sued the railroad for sex discrimination and retaliation. A jury in federal district court vetoed her bias charge but awarded her $43,500 in damages for retaliation.

The railroad appealed to the 6th Circuit (covering Kentucky, Ohio, Michigan, and Tennessee ), which reviewed much testimony and upheld the jury award. The railroad then kicked the decision upstairs to the Supreme Court, which ruled on June 22, 2006 .

What was the primary issue?

The Court agreed to hear the case because of a so-called 'split' on such cases among appeals courts: Some insisted that unless an employee was fired or demoted, negative actions didn't amount to retaliation. Others, including the 6th Circuit, saw the term as including less severe steps--like the loss of a desirable job and a long, unpaid suspension.

Justices ruled that any step that would strike a "reasonable employee" as "materially adverse" could qualify as retaliation, depending on the context. The result of the ruling is that all circuits must now use a broader definition of retaliation. Justice Steven Breyer, who wrote the opinion, said this of White, "Many reasonable employees would find a month without a paycheck to be a serious hardship."

Justices also discussed the context of employer steps, noting that a change in an employee's work schedule might be minor to many but could "matter enormously" to a mother with school-age children. In another example, they wrote that a boss's refusal to invite an employee to lunch might be trivial--unless it was a weekly training lunch.

Expert illustrates why context matters

We asked Patricia Griffith, an attorney in Ford & Harrison's Atlanta office, to discuss the implications of the Court's ruling. First, she commented, the Court's emphasis on the context of an employment step, including its potential impact outside the workplace, may significantly affect employers.

As Griffith put it, employers will need "a heightened awareness of who their employees are. Which ones have child- or elder care responsibilities?" If someone does provide care at home, changing his or her work schedule could be a materially adverse step. Or, if you decide to transfer an individual to another office, for example, you'll need to know how the change will affect the person's commute.

While it may seem beneficial to know your employees very well, Griffith cautioned that it raises concerns about privacy and can hamper your ability to apply your policies consistently. Suppose you need to impose mandatory overtime to complete a rush order. When no one volunteers, you tap the worker with the least seniority. But he cares for his ailing mother and can't afford to pay someone to be with her for the extra hours. If he has also lodged a complaint of any kind, do you skip him and choose the next-least-senior employee? Is that fair?

Some commentators have characterized the ruling as "opening the floodgates" and representing a dramatic change for employers. But Griffith pointed out that some circuit courts, such as the 11 th (covering Alabama , Florida , and Georgia ), 7 th ( Illinois , Indiana , and Wisconsin ), and the federal circuit in Washington , D.C. , were already using a fairly broad definition of retaliation--one not limited to termination or demotion. So there will only be a big change for other circuits, such as the 5 th (covering Louisiana , Mississippi , and Texas ).

In general, she noted however, it will be more difficult for employers to gain dismissal of retaliation charges that seem trivial. For example, consider the case of a waiter who charges retaliation because his supervisor switched him from one set of tables to another. That sounds quite trivial, but suppose the better tippers sat at his original tables, and the change costs him $30 a week in lost tips. That amount might be anything but trivial to him.

Griffith also speculated that one reason this ruling was unanimous was White's 37-day suspension over Christmas. That she later won back her lost income couldn't have made up for that bleak holiday, which she described as the worst she'd ever had. During that period, she no doubt feared she'd been fired--the ultimate retaliation.