Gender and Justice Project
The oral argument in Burlington Northern v. Sheila White:
Retaliation v. running a business, tangible v. trivial, Talmud v. original text
For the big Supreme Court cases—about abortion, say, or gay rights—it’s a struggle for ordinary reporters (who aren’t the dedicated Supreme Court press) with one-day passes to get into the press gallery. During those big cases, security guards rifle through your bag, check your ID, and question your right to be there. If you make it past the guards into the press office, you’re assigned a number--like a draft pick--that will determine where you get to sit, or if you will get in at all. You’re then herded in two tightly-organized and counted-off columns into the long second-tier press gallery, hidden behind large marble pillars, unable to see the Justices at all.
By contrast, getting into the oral argument for Burlington Northern & Santa Fe Railway Co. v. Sheila White was easy. A quick zip through the metal detector, a stop at the press office, no need to show ID, and the few of us who cared about the case—reporters from business journals and reporters who cared about women’s issues—were waved up into the press gallery casually, like ordinary visitors. That’s because Burlington Northern v. White wasn’t on anyone’s radar—even though the decision in this case will affect hundreds of thousands of working people’s daily lives on the job. Burlington offers the Court a chance, once again, to decide what Congress really meant when its 1964 Civil Rights Act Title VII, section 703, declared it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
Case law—i.e., law that’s been elaborated and defined by judges—is a peculiar creature. Despite all we know about legislative lawmaking—the harried, grandstanding, or venal deals, the phrases written in or struck out at the last minute to woo particular members’ votes—judges treat each statutory phrase as if it were divinely ordained. Exactly what Congress meant by each word is thus subjected to a long Talmudic process of interpretation by the courts. Look just at the phrase from section 703, above. What counts as “discrimination”? What exactly is a “term, condition, or privilege of employment”? Is the “employer” discriminating only if an executive misbehaves … or is the “employer” also implicated a manager, supervisor, or even coworker “discriminates”? What exactly does each side have to prove to show that the employer is (or is not) at fault?
All those questions have bubbled up through the federal trial and appeals courts over the years, eventually decided by the Supreme Court, who then toss their definitions back down to the trial courts, only to have new questions bubble back upward. In Burlington, the question at hand was about section 704 of Title VII, in which Congress said it was also illegal for an employer to retaliate—or, to use 704’s phrase, “discriminate against”—anyone who had brought a discrimination charge, or testified on behalf of someone else’s charge. Otherwise, it’s easy to see that simply by bringing a discrimination charge, you could get fired.
But what if you charge discrimination, and what happens is something less than being fired, demoted, or docked? What if you complain about discrimination, and then are put into a less-desirable job--at the same rate of pay? Can you still sue? Are employers free to punish employees for complaining—so long as that punishment isn’t extracted from the employee’s wallet? Or, from the employer’s point of view, do employees who charge discrimination abruptly become untouchable, making any trivial on-the-job slight into grounds for a retaliation lawsuit? That was the question in
On Monday, April 17, both sides at the Supreme Court agreed on the basic facts of this case. In
After a few months, White complained to her foreman’s manager about the harassment. The foreman was suspended for ten days. But White, too, was punished: she lost the forklift job and was reassigned to plain old track labor, which all sides agreed was a dirtier and harder job. Still later, she was suspended without pay for 37 days (without knowing whether she’d get her job back) for being a “troublemaker.” Only by bringing a union grievance did she retrieve her job—the icky track laborer spot, not the prized forklift spot--and her back wages.
So Sheila White sued for sex discrimination and retaliation. A jury awarded her $46,750 in compensatory damages. Burlington Northern appealed to the Sixth Circuit, saying that the jury was given the wrong instructions. Burlington Northern said that she didn’t lose any pay and had no net financial loss. This kind of job reassignment therefore wasn’t a “tangible employment action”--the Talmudically magic words that, since a key 1998 sexual harassment decision, courts have been using as the dividing line between annoying mistreatment on the job, and discrimination that’s so bad you can sue. (“Materially adverse” is a magically synonymous phrase for “tangible employment action.”) And, said Burlington Northern, “materially adverse” was the standard that should be counted for retaliation cases, as in plain old discrimination cases. In other words, if the guys think women shouldn’t be forklift operators, the company should be free to give you a dirtier and less enjoyable job—so long as you get paid the same amount. Having a limited and financially measurable standard is a big deal to employers—and the reason a company like Burlington Northern was willing to argue all the way up to the top court appealing a puny $46,750 judgment (plus something over $50,000 in Sheila White’s legal fees).
White’s lawyers (backed by the NWLC, ACLU, AAUW, and a long list of other women’s rights groups) argued a couple of points. First, of course reassigning her was “materially adverse.” She lost the easier job, and went to a dirtier one, just for charging discrimination. Then she went more than a month without pay—which may not mean much to an executive or lawyer, but at her pay grade, meant she had trouble feeding her kids, couldn’t buy Christmas presents that year, and saw a doctor for stress-related illnesses. Second—and more important—“materially adverse” should not be the standard. Congress knew that there’s lots of ways to silence a troublesome employee. Who would charge discrimination, or testify on the side of a discrimination victim, if she knew she could be harassed every which way but financially on the job?
Here’s the reason it got to the SC: the different appeals courts have come to different conclusions on how you define retaliation. The Sixth Circuit (and you can read its opinion yourself) decided that “materially adverse” is indeed the standard. Its first three-person panel, however, thought that what happened to White was not “materially adverse,” since she got her money back in the end. Then the full 11 members of the circuit heard the case en banc, and said, yes, a jury rightly decided that White’s lateral transfer and 37-day suspension were “materially adverse.” (That alone tells you how tricky these Talmudic phrases are.) The Fifth and Eighth Circuits make things much easier for employers, saying that it’s only retaliation if it involves an “ultimate employment decision” like failing to hire, failing to promote, or firing. Had her trial taken place in those circuits, it would have been tough noogies for Sheila White. On the other hand, the Ninth and the Seventh Circuits stand with the little gal: any action that is “reasonably likely to deter” you from reporting discrimination—say, a “lateral transfer”—counts as retaliation, and you can sue.
First up at argument was attorney Carter Phillips, representing Burlington Northern. He emphasized that in the past few years there’s been a 100 percent increase in retaliation charges filed with the EEOC—and that retaliation now makes up 30 percent of the EEOC’s docket. If the Court defined “retaliation” as even the most trivial behavior, then employers were going to be taken to court constantly by oversensitive or greedy employees. Besides—and here came the wonky heart of the case—in Title VII’s section 703, Congress defined discrimination itself as any action affecting “compensation, terms, conditions, or privileges of employment.” In section 704, when it defined retaliation as “discriminating against” someone for exercising their protected right to complain, of course the same high standard applied. Why would Congress bother to rewrite everything in 703 and put it in 704? And why would Congress want to give broader protection from retaliation than from discrimination itself? Did the Court really want employees to be free to sue if—and he delivered this example scathingly—after they filed a discrimination charge, the boss disinvited them to lunch? Further, what happened to Sheila White was not materially adverse: she got all her money; her job change was up to her employer; a temporary suspension was not a “tangible employment action.”
Scalia would have none of this. Showing his strict dedication to the text and nothing but the text, he said that surely Congress could have added “compensation, terms, conditions, or privileges” if it wanted to. Since it didn’t, the phrase Congress actually used—“discriminating against”—obviously meant something broader.
Ginsburg wasn’t happy either. Showing her roots in women’s rights, she zeroed in on that lunch and used it to talk about the ways women are ordinarily excluded from jobs and promotions. What if an employee were conspicuously disinvited to a weekly lunch, to which all the men were invited, and her career took a rapid nosedive? Or what if her flextime schedule was cancelled—a schedule that had enabled her to work while caring for an especially needy child—and she had to leave the job: that would be pretty darn tangible, wouldn’t it?
Phillips didn’t think so. Being excluded from the regular lunch, he argued, might be actionable under a different magic phrase: “severe and pervasive.” “Severe and pervasive” entered the legal lingo in 1986, when the Supreme Court in Meritor v. Vinson declared sexual harassment to be sex discrimination, since it interfered with the “conditions” of employment for no other reason than sex. All the courts agreed that a demand for sexual favors in exchange for a job (or pay, promotion, and so on) was discrimination; that standard is known as “quid pro quo,” or this for that. But Meritor said that “severe or pervasive” harassment was also discrimination, even if there was never a direct “do this or lose your job” threat. (Unfortunately, in practice, judicial standards for what counts as “severe or pervasive” harassment are astonishingly high—having your breast grabbed a dozen times might not count‑-but that’s another article for another day.) But a schedule change or a lateral transfer were flatly neutral: if it didn’t cost the employee, it wasn’t “materially adverse.”
Souter didn’t like this. Surely, he said, being shunted off a nice seated forklift job, which everyone agreed was the best job, to a “rotten job” of pulling nails out of rails with your bare hands was “materially adverse.”
Breyer saw his colleagues heading toward the Sixth Circuit’s middle ground of “materially adverse,” and tried to steer them instead toward the Ninth Circuit standard of “reasonably likely to deter.” He argued that surely Congress worried that people won’t complain. It was easy to think of non-pecuniary ways to harass and dissuade a “reasonable worker”; the standard of “reasonableness” was common enough in law. More than once over the next hour, he argued expansively that even the most subtle behavior had to count as retaliation, since there were so many ways employers could slap employees around in ways that would stop them or others from exercising their protected right to complain about discrimination.
Scalia and Ginsburg ignored him and started demanding that Phillips admit that, for White, going 37 days without pay was a real hardship. Phillips refused to give, insisting that White got her money. Ginsburg all but rolled her eyes, practically reading aloud from the NWLC brief about White’s stress, fear of not feeding her kids, and despair about getting Christmas presents for the kids. Then the (metaphorical) buzzer rang, and the round was over.
So far, we’ve heard only from the justices we already know—and not from those two curiously unknown quantities, Roberts and Alito. Will these two be “strict constructionists,” as advertised, looking at the text and only the text—or will they instead be corporate defenders? The news here is bad. The next attorney who rose to the bar, Gregory Garre, deputy solicitor general, argued that the en banc Sixth Circuit had things exactly right: retaliation was anything “materially adverse”; what happened to Sheila White was indeed “materially adverse” because a jury had reviewed the facts and found it to be so. Chief Justice John Roberts—whom, you may recall, legal scholar Cass Sunstein said has never seen an employer’s case that he didn’t like--did not like this one bit. He argued that if Burlington Northern could not reassign Sheila White at will, it would mean that once you charged discrimination, employers no longer had any liberty to shift you around—and you essentially became the possessor of a job. That just couldn’t be right. Scalia, who had seemed so firmly on Sheila White’s side in round one, now revealed that he was of three minds, like a tree in which there are three blackbirds: he now agreed with Roberts, and worried that employers would have to be too deferential to an employee who’d levied a discrimination charge.
Garre wooed him by plowing into the pesky textual question of 703 and 704--that is, did something count as “retaliation” even if it was too slight to count as “discrimination”? His point of view: Congress knew how to write a statute. If it had wanted 703 and 704 to mean exactly the same thing, it could have written them in exactly the same way. Then, yet again, the buzzer rang, and it was time for a new round.
Now Sheila White’s representative Donald Donati was at the bar. He argued that, no matter what the standard, White should win: what happened to her was “materially adverse.” But the standard should be broader than that; as Breyer was emphasizing, there was good reason to have 704 be broader than 703. First, because it was easy to discourage victims of discrimination from complaining. And second, because it was much easier to discourage witnesses from coming forward to testify about discrimination. The employer’s message in Sheila White’s case was clear: Complain, and we’ll give you a worse job. How could you enforce the Civil Rights Act if employers had a list of legal ways to punish anyone who spoke out? Surely Congress intended to prevent exactly that.
Roberts continued defending corporate privilege, arguing that employers had to be able to run their businesses as they saw fit. Scalia worried still more about an onslaught of retaliation lawsuits over trivialities. What if I'm a supervisor, he asked, and my employee files a complaint against me, and I'm not very friendly to her after that. Wouldn’t that be discrimination and retaliation? If you don’t tie 704 to “terms, conditions, and privileges,” wouldn’t simple grumpiness give rise to a retaliation lawsuit? “I worry about that,” Scalia said, because “juries have big imaginations that are meant to be controlled.” So much for respecting the American jury system or the legal idea of what a “reasonable person” would consider discrimination.
Ginsburg did her best to pull her opera buddy Antonin back to her side. She coached Donati into agreeing that “materially adverse” had been broad enough to cover Sheila White’s transfer and suspension without pay, and yet narrow enough to prevent lawsuits over bruised feelings. Then she asked Donati to agree that the real problem would be the extreme standard proposed by the Fifth and Eighth Circuits: the idea that retaliation had to be an “ultimate action” (hiring, firing, promotion); a plain old “action” would be enough. Souter chimed in to say that “material” certainly ruled out the “de minimus” trivialities that worried Scalia.
Samuel Alito, our other Court newbie, leaned backward to the stricter employer-friendly standard. He asked whether Sheila White really had been materially affected. She had exercised her right to have an investigation and get her suspension reviewed—and won. What was “material,” anyway? “That’s a great question,” said Donati, and the courtroom laughed out loud—since it was, indeed, the central question of the case.
Not long thereafter, the final bell rang. We were ushered back out into the spring rain, among
But here’s my personal gripe: none of these brilliant abstract thinkers seemed especially interested in the practical fact that women are regularly thrown out of forklift-operating jobs under one pretext or another—or that this is undermining women’s pay and cutting the very heart out of the Civil Rights Act’s ban on discrimination by sex. Sheila White’s experience was unusual, in that the union had bargained to keep the forklift job paying no more than the more lowly jobs. Nevertheless, White’s coworkers wanted her out just because she was a woman.
Why does this matter? Because that bias against women in “men’s” jobs is holding down women’s pay across the board. No, not every woman wants to drive a forklift. But social scientists have shown over and over that many women will jump into a better-paying field, no matter how dirty or onerous the work, if they think they’ll be let in. Just try supporting a child or two or three, and maybe a disabled husband, on a waitress’s or a bank clerk’s wages: it can’t be done. “Men’s work” still pays significantly more than comparable “women’s work.” Consider the difference between the median weekly earnings of a secretary ($552) and a firefighter ($933), a social worker ($698) and a police officer ($844): that’s the difference between scraping by and supporting a family. So why, in 2000, were two-thirds of
Employers are getting away with blatant sex discrimination because there’s no public outcry-- indeed, almost no public scrutiny at all. Yes, it’s important that women have the right to decide what happens inside their uteruses. But it’s just as important that women be able to support themselves. When will we the public start to care passionately about whether women are treated fairly on the job?