Oral Argument in Burlington v. White
on Apr 14, 2006 at 1:49 pm
On Monday, the Court will hear argument in Burlington Northern Santa Fe Railway Co. v. White, No. 05-259. The case requires the Court to consider what types of conduct can constitute actionable retaliation under Section 704 of Title VII of the Civil Rights Act of 1964. In particular, the Court will decide whether Title VII’s anti-retaliation provision prohibits an employer from (1) suspending a complaining employee without pay for a month, so long as the employee is reinstated with back pay, or (2) reassigning the employee from her position operating a forklift to a less desirable position in the railyard.
Carter G. Phillips of Sidley Austin will argue on behalf of the petitioner. Donald A. Donati of Donati Law Firm will argue for respondent.
Disclosure: Goldstein & Howe wrote an amicus brief supporting respondent on behalf of the National Women’s Law Center.
The briefs are available in an earlier post here.
Facts
Respondent Shiela White was the only woman working in a railyard operated by petitioner in Tennessee. After she complained about sexual harassment to her employer, she was reassigned from her position as a forklift operator and given the work of an ordinary “track laborer,” which entails dirtier manual labor in the railyard. White believed that the reassignment was in retaliation for her discrimination complaint, and filed a discrimination and retaliation charge with the Equal Employment Opportunity Commission. Shortly afterwards, the employer accused White of insubordination and suspended her without pay. White challenged the suspension under a union grievance process, and eventually prevailed, obtaining reinstatement and backpay. However, she spent more than a month over the Christmas holidays without a paycheck. White concluded that the suspension was in retaliation for her complaint to the EEOC.
White sued her employer, alleging both discrimination and retaliation in violation of Title VII. Section 703 of Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on the basis of sex. Section 704 makes it unlawful for an employer to “discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this title or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” The jury found in favor of the employer on the discrimination claim, but in White’s favor on the retaliation claims.
The employer appealed the jury verdict, arguing that even if it retaliated against White because of her discrimination complaint, the form of retaliation in this case was not prohibited by Title VII. The Sixth Circuit sitting en banc rejected that argument and the Supreme Court granted certiorari to resolve a deep circuit split over the standards for actionable retaliation under Title VII.
Arguments in the Supreme Court
In the Supreme Court, the parties disagree about what kind of employer conduct can give rise to a retaliation claim under Title VII, and whether the conduct in this case meets that standard. If the Supreme Court decides to reach the question of the proper standard, it will have many candidates from which to chose:
(1) The most employer-friendly version, adopted by the Fifth Circuit, holds that only retaliatory “ultimate employment actions” are proscribed by Section 704, meaning things like termination, demotions, etc. No party is defending this theory before the Court.
(2) Instead, petitioner advances its strict interpretation of the “adverse employment action” test applied (wrongly, in petitioner’s view) by the Sixth Circuit below. In it’s view, Section 704 prohibits the same kinds of acts as Section 703 which, it argues, prohibits only the creation of hostile work environments (not at issue here) and the imposition of “tangible employment actions.” Petitioner borrows that term from Burlington Industries v. Ellerth, in which the Supreme Court held that when a supervisor violates Title VII through a “tangible employment action,” the employer is automatically liable for the supervisor’s conduct as a matter of agency law. Petitioner notes that most courts of appeals require proof of an “adverse employment action” under both Sections 703 and 704 (although they do not necessarily interpret that to require a “tangible employment action” within the meaning of Ellerth).
Petitioner argues that the job reassignment was not a tangible employment action in this case because it did not affect White’s compensation or job title, but rather the mix of duties she performed within her job description. The suspension also was not a tangible employment action under this standard, petitioner argues, because it did not represent the final decision of the employer (which, after investigation, repudiated the charge of insubordination and reinstated White with back pay).
(3) The Solicitor General, appearing as amicus supporting respondent, urges the Court to adopt essentially the same standard as petitioner, but argues that the suspension and reassignment in this case constitute “tangible employment actions.”
(4) Interestingly, the Solicitor General specifically disavows the interpretation put forward by the EEOC in its Compliance Manual and as an amicus in this case before the Sixth Circuit. The EEOC interprets Section 703 to prohibit any conduct that would deter a reasonable person from complaining about discrimination or cooperating with the EEOC. This view has been adopted by the Seventh, Ninth and D.C. Circuits.
(5) Finally, although petitioner won under the “adverse employment action” standard below, and urged the Sixth Circuit to adopt the EEOC standard at the en banc stage, petitioner now urges the Supreme Court to hold that there is no minimum threshold at all for actionable retaliation under Section 703 — so long as the action is adverse to the employee and is because of the employee’s protected conduct, it is actionable.
Implications
This case could have substantial implications for the administration of Title VII. Most obviously, the Court could state the proper standard for evaluating retaliation claims, which are an increasingly common aspect of Title VII litigation (the EEOC receives some 20,000 retaliation complaints each year). Given the inherent indeterminacy of most of the candidate standards, how the Court resolves the particular claims of retaliation in this case could be just as important, providing concrete examples to employers, workers and the lower courts.
Moreover, were the Court to accept petitioner’s dual assertions — that Section 704 prohibits the same scope of conduct as Section 703 and that both are limited to “tangible employment actions” under Ellerth — the case could have a potentially significant impact on ordinary Title VII discrimination claims as well. That is, if the Court holds that outside of the hostile work environment context, Title VII requires proof of a “tangible employment action” and construes that term narrowly, employers will have achieved a substantial narrowing of the scope of Title VII liability. On the other hand, if the Court agrees with the general view that a “tangible employment action” is required, but construes the term broadly, it will have increased the scope of supervisor conduct for which employers are automatically liable under the agency principles in Ellerth.
Postscript on the SG’s Position
One might wonder how it is that the EEOC and Solicitor General ended up taking different positions in the very same case. The disconnect arises principally because the EEOC is a quasi-independent agency. Most federal agencies are required to obtain the approval of the Solicitor General prior to filing an amicus brief in a court of appeals. The purpose of this rule is to promote uniformity of the Government’s litigating positions in the courts of appeals. However, the EEOC does not require such approval. But the EEOC does not have similar independent litigating authority in the Supreme Court, where the Solicitor General must represent the agency. But the SG also represents the Civil Division of the Department of Justice, which routinely defends the federal government against Title VII suits by federal employees and which traditionally takes a narrower view of Title VII than does the EEOC. It falls upon the SG to weigh the competing interests and arguments in deciding what interpretation of Title VII to support in the Supreme Court. In this case, the result of that struggle is evident not only in the arguments in the Government’s brief, but also in the names of the brief’s cover — conspicuously absent are the names of anyone from the EEOC, replaced instead by attorneys from the Department of Justice (mostly the Civil Division).
