High court warns about retaliation


WASHINGTON -- The Supreme Court strengthened the enforcement of civil rights laws in the workplace, ruling yesterday that it is illegal for employers to punish workers who file discrimination complaints by shifting them to a less appealing job or changing their work hours.

The 9-0 ruling upheld a $43,000 jury verdict in favor of a female railroad worker who was removed from her job as a forklift operator and reassigned to more arduous work on a track-repair crew after she complained of sexual harassment.

In the Civil Rights Act of 1964, Congress made it illegal for employers to retaliate against employees who complain of discrimination. But until yesterday, the Supreme Court had never defined what was meant by retaliation.

With surprising unanimity, the justices rejected the arguments of business lawyers who argued that "minor changes in work assignments" should not be deemed illegal simply because an employee has complained of discrimination.

Instead, they set a rule that bars all but trivial actions taken against a complaining worker.

For example, a "petty slight" - such as a supervisor failing to invite an aggrieved employee to lunch - does not amount to illegal retaliation, the court said. But if the worker is excluded from weekly planning meetings, he or she may well be able to win a separate discrimination charge against the employer.

If the employer's action against an employee could have "dissuaded a reasonable worker" from complaining in the first place, then it is illegal, the court said.

Legal experts predicted a further increase in retaliation complaints, which already account for about one in four job discrimination cases.

"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."

In general, employers want to stop such complaints before they get to a jury because they can result in large awards.

Yesterday's decision arose from a case of sex discrimination, but it applies also to claims of discrimination based on race, religion, ethnicity, age or disability.

The court's ruling came in the case of Sheila White, who in the summer of 1997 was the only woman on a Burlington Northern & Santa Fe Railway maintenance crew in Memphis.

She had experience operating a forklift and was given that job soon after she arrived. But after a few months, she told her supervisor that her foreman was making sexist comments and off-color jokes - along with remarks, echoed by other workers, that a woman did not belong there.

The foreman was suspended for 10 days, but the supervisor also removed White from the forklift and reassigned her to a track crew at the same pay.

She contacted the Equal Employment Opportunity Commission, contending that the reassignment was unlawful gender discrimination and retaliation for her original complaint.

Later, after a dispute with another foreman, White was suspended without pay for a 37-day period that included the Christmas season.

That also led to an EEOC complaint.

David G. Savage writes for the Los Angeles Times.

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