Question

In June 1997, Sheila White was the only woman working in the Maintenance of Way department at BNSF’s Tennessee Yard. When she applied for the job at BNSF, her previous experience operating forklifts was noted by Marvin Brown, her interviewer at BNSF. White was hired as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, she was assigned to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White's primary responsibility.

In September 1997, White complained to BNSF officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session.

On September 26, Brown told White about Joiner's discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker's complaints that, in fairness, a “‘more senior man’” should have the “less arduous and cleaner job” of a forklift operator.

On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activities. That charge was mailed to Brown on December 8.

A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. Some aspects of this conversation are disputed, however, later that day Sharkey told Brown that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her back pay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

After exhausting her administrative remedies, White filed a lawsuit against Burlington which alleged, among other things, retaliation in violation of Title VII of the Civil Rights Act of 1964. The two retaliatory acts that White used as a basis for her complaint were (1) the reassignment of her forklift duties; and (2) her 37-day suspension.

The Supreme Court granted review of this case to resolve a disagreement between the circuits regarding the types of actions which support a retaliation claim. Prior to this decision, several circuits applied the standard of a “materially adverse change in terms and conditions of employment” in order to establish retaliation. Other circuits used a less burdensome standard, holding that a plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee.” The standard in the Ninth Circuit for establishing a retaliation claim was “adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”

Burlington argued that a reassignment of duties within the same job description can not support a retaliation claim because it does not materially affect the “terms and conditions” of employment. In addition, Burlington argued that because White was given back pay and reinstated, her 37-day suspension did not materially affect the terms and conditions of her employment. By making this argument, Burlington argued for application of the least onerous standard for retaliation claims. The Supreme Court disagreed, holding that these actions could support a retaliation claim because they could have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” In reaching this conclusion, the Court held that the standard for a retaliation claim is that a plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee.”

In the case of Burlington Northern and Santa Fe Railway Co. v. White.

1. Do you agree with the Court's decision?

2. Do you believe that Burlington's actions were retaliatory?

3. How could this case have been resolved in an ethical manner?

Answer 1

ANS 1)- No, I do not agree with the court's decision. The Supreme court hold that the actions could support a retaliation claim because they could have dissuaded a reasonable worker from making or supporting a charge of discrimination. But when white complained about her immediate supervisor Bill Joiner that he discriminated her as she was a woman, Burlington suspended Joiner immediately for 10 days. Therefore in such case how come they dissuaded her from making a charge of discrimination.

ANS 2)- No, Burlington's actions were not retaliatory as when White complained about her Immediate supervisor, they suspended him immediately, again White complained about the reassignment of duties, it is also not a retaliatory action as reassignment of duties can be given to a person based on the requirements of a company, White too filed a complaint regarding the suspension of 37 days which is also not retaliatory action as Burlington paid her after the investigation showed that White was not insubordinate and they also reinstated her to her position.

ANS 3)- Court could have heard Burlington's argument which stated that in both the cases there was nothing which materially affected the terms and conditions of the employment. Also they should have reviewed the case from the starting point which clearly shows that Burlington had done nothing wrong with White.