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Last week we filed an amicus brief on behalf of the National Women’s Law Center and 29 other amici in support of the respondent in Burlington Northern v. White, No. 05-259. The brief was prepared in conjunction with the Stanford Supreme Court Litigation Clinic. The Stanford team included James Darrow, Fred Smith, and Michael Kauffman.

The case involves the proper standard for evaluating claims of retaliation in violation of Title VII of the Civil Rights Act of 1964. The plaintiff in this case was the only woman working in a rail yard. After she complained to her employer and the EEOC about sexual harrassment by a supervisor, she was reassigned from her job as a fork lift operator to a “track laborer” position. Later she was suspended without pay on false charges of insubordination for more than a month before being reinstated with backpay through a union grievance proceess. A jury found that these actions were taken in retaliation from her Title VII complaints. The question before the Supreme Court is whether such conduct can ever constitute actionable retaliation as a matter of law under Title VII.

For those who are interested, the other briefs filed in the case are provided after the jump.

A notable aspect of the briefing in this case is the position of the Solicitor General and respondent’s reaction to it. The SG filed an amicus brief supporting the employee, but advances a legal standard of retaliation that is more employer-friendly than the position taken by the the Equal Employment Opportunity Commission in its Title VII Compliance Manual. Notably, the EEOC did not sign on to the brief. The employee, who is advancing a legal theory more liberal than the EEOC’s, has moved to file a supplemental brief in response.

Oral argument is set for April 17, 2006.

Petitioner’s Side:

Petitioner’s Brief

Association of American Railroads

Equal Employment Opportunity Council & Chamber of Commerce

International Municipal Lawyers Association

Society of Human Resource Management & National Federation of Independent Business Legal Foundation

Respondent’s Side:

Respondent’s Brief

United States

National Womens Law Center et al

AFL-CIO & Brotherhood of Maintenance of Way Employees Division, Teamsters

National Employment Lawyers Assoc., et al.

Lawyer’s Committe For Civil Rights Under Law, et al.