Fighting for Fair Treatment

For the big Supreme Court cases -- about abortion, say, or gay rights -- it's a struggle for ordinary reporters (those who aren't the dedicated Supreme Court press) with one-day passes to get into the press gallery. After a maze of security, and if you get in at all, you're herded into the long second-tier press gallery, hidden behind large marble pillars, unable to see the justices at all.

Getting into the oral argument for Burlington Northern & Santa Fe Railway Co. v. Sheila White, though, was easy. A quick zip through the metal detector, a stop at the press office, no ID needed, and the few of us who cared about the case were waved up into the press gallery casually, like ordinary visitors. Burlington Northern v. White isn'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.” In Burlington, the question was about section 704 of Title VII, in which Congress said it was also illegal for an employer to retaliate -- to “discriminate against” -- anyone who had brought a discrimination charge or testified on behalf of someone else's charge. Otherwise, simply by bringing a discrimination charge, you could get fired.

But what if you charge discrimination, and the result 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 Burlington -- a question that's urgent to discrimination victims, who want a lot of protection if they complain, and to employers, who don't want to treat whiny employees like fragile glass animals.

On Monday, April 17, both sides at the Supreme Court agreed on the basic facts of this case. In Memphis in 1997, Burlington Northern hired Sheila White to operate a forklift in its rail yard. The other employees, all men, were furious -- even though none of them had the qualifications to run the forklift -- because forklift driver was considered the plum job. White's foreman and co-workers told her insistently that they didn't think a woman should be working there in a rail yard.

Is it really possible that in 1997 people were still talking about “men's jobs” and “women's jobs”? Yes, it's illegal. But forklift operator, a coveted blue-collar job that often pays more than ordinary factory or day laborer work, is widely considered a man's job, and women are often told they can't do it. (Check www.wageproject.com for more such cases.) White's experience is neither anomalous nor merely symbolic. What's at stake here is not just the legal definition of “retaliation,” but the larger point of whether you can drive a woman off a job for which she's qualified just because she's a woman.

After a few months, White complained to her foreman's manager about the harassment. The foreman was suspended for 10 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 for being a “troublemaker.” Only by bringing a union grievance did she retrieve her job -- the 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 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 actionable discrimination. “Materially adverse” is another 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.

Here's the reason it got to the supremes: Different appeals courts have come to different conclusions on how you define retaliation. The Sixth Circuit declared that “materially adverse” was the standard, and that what happened to White counted under that standard. Other circuits have said that it's only retaliation if it involves an “ultimate employment decision” like failing to hire, failing to promote, or firing. Still others 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.

Burlington's lawyers (and employers generally) argued for as limited a definition as they could get, believing that otherwise employers would be at the mercy of their most unhappy employees and would be unable to run their businesses as they see fit. White's lawyers (and amici) sought the widest possible definition, believing that no one 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.

While no one can predict a case's outcome from the questions the justices ask, one does learn something about their thinking. Over the course of the hour, Scalia asked sharp questions of both sides. In keeping with his dedication to the text, he was impatient with Burlington's lawyers for arguing that Congress intended sections 703 and 704 to define discrimination in the same way, even though each provision was written differently. In 703, Congress banned discrimination in “compensation, terms, conditions, or privileges of employment.” Since that constraining phrase was absent from 704's ban on retaliation, he concluded, Congress obviously meant the retaliation provision to encompass a broader range of behavior. And he had no patience with the Burlington lawyer's insistence that White's suspension hadn't been “materially adverse”; Scalia seemed to grasp that for someone living hand-to-mouth, going 37 days with no pay was a real blow. But with White's attorneys, he worried that too broad a definition of “retaliation” would result in employers getting hauled into court for the most trivial dissings as retaliation -- even a supervisor who became grumpy and stopped saying “good morning” after an employee filed a discrimination charge.

Ginsburg, Scalia's opera buddy, kept a close watch on him -- and kept pointing out that the Sixth Circuit's “materially adverse” standard had been broad enough to cover White's suspension, but was narrow enough to rule out mere unfriendliness. In keeping with her background in women's rights, she kept noting how many ways there were to torpedo a woman's job or career that appeared indirect: disinviting her to a weekly lunch that all the men attended, say, or eliminating her flextime and forcing her to choose between her child and her job. Stevens and Souter seemed to line up with Ginsburg's approval for the Sixth Circuit's standard, while Breyer kept voicing support for the broadest possible definition of retaliation, noting that there were many subtle ways to discourage or pressure victims or witnesses from speaking up, and spoke up for “reasonably likely to deter.”

Roberts and Alito, meanwhile, sounded very much like company men. Roberts questioned White's lawyers sharply, suggesting that if Burlington Northern could not reassign White at will, it would mean that once you charged discrimination, you essentially became the possessor of a job. Alito doubted out loud whether White's suspension was indeed “materially adverse,” since she got her back pay after all -- suggesting that he and Roberts might argue for the strict “ultimate employment action” standard.

After time ran out before the justices, the few of us who cared to be there were ushered back out into the spring rain. If I had to put down money, I'd bet that the court will decide that you can sue for “retaliation” under the Sixth Circuit's “materially adverse” standard but that the supremes will define “materially adverse” broadly enough to include erasing your paycheck for a month, and maybe (although not as certainly) tossing you out of a good job into a bad job, even with no pay cut. Breyer, Ginsburg, Souter, Stevens, and Scalia all seemed inclined in that direction. Of course, there are miles to go before they write. And even if the court does adopt that standard, the lower courts -- which do not like employment discrimination claims -- may well keep raising the bar anyway, defining “materially adverse” more narrowly every year.

But here's my 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. White's co-workers wanted her out just because she was a woman. Why does this matter? Because it is holding down women's pay across the board, and cutting the very heart out of the Civil Rights Act's ban on discrimination by sex. 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). Yes, the firefighter should be paid more. But women should have a fair shot at those jobs -- and shouldn't be driven out as regularly as they are, just because the guys think those are men's jobs.

Why, in 2000, were two-thirds of U.S. workingwomen still crowded into 21 of the 500 occupational categories, with the top 10 including receptionist, secretary, cashier, sales worker, registered nurse, elementary school teacher, nursing aide, bookkeeper/accountant/auditor and waitress? Why did women still make up only 2 percent to 20 percent of all engineers, police officers, firefighters, mechanics and construction equipment operators, chefs and head cooks -- and fewer than 3 percent of all employees in the trades? Sheila White's experience gives you a big fat clue to how women are still ghettoized into the jobs with skinny pink paychecks.

Employers are getting away with blatant sex discrimination because there's no public outcry -- indeed, almost no public scrutiny at all. Think how easy it was for me to grab a good seat to hear Burlington Northern v. White, with two long empty rows of press seats behind me. Yes, it's important that women have the right to decide what happens inside their uteruses. But it's just as important that we be able to support ourselves. When will we start to care passionately about whether women are treated fairly on the job?

E.J. Graff, senior researcher at the Brandeis Institute for Investigative Journalism, most recently collaborated on Evelyn Murphy's book Getting Even: Why Women Still Don't Get Paid Like Men -- And What To Do About It. She is a Prospect senior correspondent.

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