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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 5:
SUPREME COURT DECISION MAY EXTEND TO REACH OF ANTI-RETLIATION
LAW
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
As revised by the United
States Congress in 2007, Section 20109 of the Federal Rail Safety Act
prohibits railroads from (1) firing, (2) demoting, (3) suspending, (4)
reprimanding, or (5) “in any other way discriminating” against
employees for engaging in specified protected activities. After listing
the four most common types of retaliation, Congress added a fifth
category to “catch” other kinds of retaliation.
How can you identify the
kind of conduct by the railroad that is covered by the fifth category of
prohibited retaliation? Specifically, what
kinds of railroad retaliation are prohibited by the “catchall provision”
in Section 20109?
Extreme cases are easy
to identify. For example, if you report a work-related injury to your
supervisor, and the railroad retaliates by firing you, then the railroad
violated Section 20109. But what if your supervisor merely utters a
single profanity when he finds out you reported a personal injury, and
he takes no other adverse action against you? Is this the kind of
retaliatory “discrimination” that is prohibited by Section 20109? We
doubt it, because not every kind of unpleasant or rude conduct by a
supervisor is going to qualify as the kind of retaliatory
“discrimination” that is covered by the “catchall provision” in Section
20109. The crucial issue is to recognize when such conduct may exist.
That leaves us with the type of case that is somewhere between these two
extremes. We need to have an idea where judges and federal regulators
will draw the line when ruling in a case involving the fifth type of
retaliation.
The United States
Supreme Court provided guidance on this issue two years ago, in a case
involving the anti-retaliation section under Title VII of the Civil
Rights Act of 1964. The case, which is available on the U.S. Supreme
Court’s website, is entitled
Burlington Northern & Santa Fe Railway
Co., Petitioner v. Sheila White
(2006).
BNSF v. Sheila White
Sheila White worked for
the Burlington Northern & Santa Fe Railway Co. as a track laborer in
Tennessee. Ms. White sued BNSF in federal court, alleging that railroad
supervisors retaliated against her after she filed two complaints with
the Equal Opportunity Employment Commission.
In her EEOC complaints,
Ms. White claimed she was the victim of gender discrimination. When her
supervisors found out about the EEOC complaints, White says they
retaliated by (1) taking away her assignment as a fork-lift operator,
and (2) suspending her without pay for 37-days, based on false charges
of insubordination.
White’s lawsuit was
based on the portion of Title VII that prohibits an employer from
“discriminating” against an employee in retaliation for filing a
complaint with the EEOC. The jurors concluded that White was the victim
of unlawful retaliation, and they ordered BNSF to pay $43,500 in
compensatory damages, plus $3250 for her medical expenses.
The United States
Supreme Court agreed to review the case based on an appeal by the BNSF.
In its appeal, BNSF argued that the anti-retaliation section of Title
VII did not apply.
The issue for the U.S.
Supreme Court was to determine what kind of “discrimination” is
prohibited by the anti-retaliation section in Title VII.
The railroad made two
arguments to the Supreme Court. First, BNSF argued that the only type
of “discrimination” covered by the anti-retaliation provision in Title
VII is hostile conduct by a railroad that involves the terms and
conditions of employment. The second argument from BNSF was that
the kind of retaliation alleged by White was not severe enough to
violate the anti-retaliation law. The U.S. Supreme Court rejected both
arguments.
Not Limited To Terms and
Conditions of Employment
Under the railroad’s
first argument, if a railroad supervisor retaliated against an employee
by puncturing the tires of the employee’s car, while it was parked at
the employee’s home, this would not be a violation of the
anti-retaliation law, because it did not affect the “terms and
conditions of employment.”
The Supreme Court
explained that the type of discrimination prohibited by the
anti-retaliation law is not limited to retaliation involving the “terms
and conditions of employment.” The Supreme Court realized that “an
employer can effectively retaliate against an employee by taking actions
not directly related to his or her employment or by causing him harm
outside the workplace.”
As the Supreme Court
explained, the anti-retaliation provision “is not limited to
discriminatory actions that affect the terms and conditions of
employment.” Instead, the Supreme Court concluded, “The scope of the
anti-retaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm.”
Retaliation must be
Materially Adverse to a Reasonable Person
As for the railroad’s
second argument concerning how harmful the discrimination has to be in
order to violate the anti-retaliation provision, the Supreme Court ruled
that the railroad’s retaliation must be severe enough that it would
likely discourage a “reasonable employee” from engaging in protected
activity.
Specifically, in a
retaliation case, the Supreme Court said, “a plaintiff must show that
a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge [under Title
VII].”
The reason for adopting this rule, the Supreme Court said, was to
“separate significant from trivial harms.”
The Supreme Court
explained that the anti-retaliation law is not violated when the
employee has only suffered “from those petty slights or minor annoyances
that often take place at work and that all employees experience.” After
all, the purpose of the anti-retaliation provision is to prevent
employers from discouraging or deterring employees from invoking their
rights under federal law. “And normally petty slights, minor annoyances,
and simple lack of good manners will not create such deterrence,” the
Supreme Court noted.
To clarify the
situation, the Supreme Court said that the severity of the railroad’s
retaliation should be evaluated by looking through the eyes of a “reasonable
employee.” For example, someone who worked as a clerk in a dress
shop might be very sensitive to snubs from supervisors. But, if a “reasonable
employee” would just shrug off such conduct from a supervisor, and
the employee would not have been deterred from invoking federal rights,
then the supervisor’s conduct would not amount to a violation of the
anti-retaliation section in Title VII.
The Supreme Court
referred to the reactions of a “reasonable” employee because it believed
that the provision’s standard for judging harm must be objective.
Otherwise judges would have the difficult task trying to determine a
plaintiff’s unusual subjective feelings.
Finally, the Supreme
Court stated that it “phrased this standard in general terms because
the significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters.”
Providing an example, the Supreme Court explained, “A schedule change in
an employee’s work schedule may make little difference to many workers,
but may matter enormously to a young mother with school-age children.
Conclusion
Applying these new
rules, the U.S. Supreme Court affirmed the verdict in favor of Sheila
White. Taking away White’s assignment as a forklift operator, and
suspending her without pay for more than a month based on an untrue
charge of insubordination, was clearly severe enough to violate the
anti-retaliation law.
Although the Sheila
White case involved retaliation under Title VII of the Civil Rights Act,
we believe it provides important guidance for possible claims of
retaliation under Section 20109 of the Rail Safety Act.
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