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A working solution

July 04, 2006

BY A SURPRISING UNANIMOUS VOTE, the U.S. Supreme Court has ruled that an employer may not retaliate against a worker who has filed a charge of illegal discrimination by transferring her to a less desirable assignment with the same job title. The decision is a victory not only for the worker who filed the case but for potentially thousands of other whistle-blowers who have been retaliated against in ways real but not measurable in dollars and cents.

Sheila White was an employee of the Burlington Northern & Santa Fe Railway Co. who complained of sexual harassment and was later moved -- within the same official job classification -- from operating a forklift to the dirtier and more arduous assignment of maintaining railroad tracks. She also was suspended for supposed insubordination. After being ordered to pay damages, her employers appealed all the way to the high court.

Before the decision, federal appeals courts were divided on the interpretation of a provision in Title VII of the 1964 Civil Rights Act prohibiting employers from retaliating against workers who complain about illegal discrimination. Some courts had ruled that retaliation is only illegal when it has an adverse effect on the terms, conditions or benefits of employment. Other courts took the more expansive view that retaliation could be illegal if an employer takes an action that might deter a "reasonable" worker from filing a discrimination claim.

In the high court opinion, Justice Stephen G. Breyer opted for the broader reading. "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace," Breyer wrote. He cited the example of the FBI's refusal to investigate death threats against an agent who had complained of racial harassment.

Breyer's approach not only tracks the language of the law, it reflects common sense. An employer who wants to punish a worker for complaining about discrimination can do so in myriad ways that don't change the employee's pay or job title. It would weaken the purpose of the Civil Rights Act to allow such retaliation to go unpunished.

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