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Bar News - August 11, 2006

Burlington Northern v. White


White Drove a Forklift, But Only for a While


 In 1997, Sheila White was hired by Burlington Northern Railroad Company and became the only female employee in her department. She was responsible for maintaining the tracks’ right of way, repairing tracks, picking up litter, cutting brush, etc. This was literally dirty work. When a forklift job opened up, she was selected because she had prior forklift experience. Her supervisor complained that women didn’t belong in that job and proclaimed this to White’s co-workers.


White complained up through the management chain; Burlington Northern investigated and suspended her supervisor for 10 days, sending him to sexual harassment awareness training. But Burlington also took away White’s forklift job and sent her back to doing the track work.


White then filed a discrimination charge with the EEOC based on gender and retaliation; and, following a couple of months of allegedly being placed under close-monitoring surveillance, she filed a second retaliation charge. A few days later, she and her new supervisor argued about which truck she should ride in, and White was suspended without pay for insubordination. The third retaliation charge soon followed.


White invoked the company’s internal grievance procedures and was reinstated 37 days after her suspension, with full back pay. She then filed suit based on the forklift reassignment and her now remedied suspension. At trial she won her retaliation claims; the Sixth Circuit initially reversed, but an en banc court reinstated her victory, but with opinions which conflicted as to the standard for retaliation.


Supreme Court Selects Door Number 3


Prior to the US Supreme Court’s ruling, courts were divided into three basic camps as to what constituted actionable retaliation under Title VII: (1) the retaliatory act had to meet that circuit’s standards for a discrimination claim; i.e., it had to adversely affect the terms, conditions or benefits of employment; or (2) the act had to be a tangible job action, like termination, demotion or transfer; or (3) the retaliation had only to be something which would likely deter a reasonable employee from complaining about discrimination.


The Supreme Court chose Door Number 3, behind which were the EEOC’s policy and an earlier Supreme Court case, Robinson v. Shell Oil, which held that a post-employment, bad job reference could be actionable retaliation. The Court also recognized the personalization of retaliation: what might be acceptable for one employee could be devastating to another, depending on the circumstances.


Regarding White, the Supreme Court held that the reassignment of duties within the same job description can constitute actionable retaliation, and the suspension—initially for an indeterminate amount of time—would present a financial and emotional hardship to most employees, and the ultimate remedy by the employer after the grievance did not undo all the harm.


White’s verdict and judgment were upheld.



Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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