In Burlington, plaintiff Sheila White was the only woman working in her department as a forklift operator at Burlington Northern & Santa Fe Railway Co. After White complained internally that her supervisor had remarked several times that women should not be working in such a department, Burlington removed White from her forklift duties and assigned her to perform laborer tasks. Burlington explained that the reassignment reflected co-worker’s complaints that a “more senior man” should have the “less arduous and cleaner job” of forklift operator.
White then filed an EEOC complaint based on unlawful gender discrimination and retaliation. A few days after the filing of her complaint, Burlington suspended White without pay after an alleged disagreement with her supervisor, who claimed that White was insubordinate. White invoked internal grievance procedures. Burlington concluded at the end of the grievance investigation that White had not been subordinate. Burlington therefore reinstated White and gave her back-pay for the 37 days she was suspended.White then filed a claim in federal court alleging that Burlington’s corrective actions were insufficient. She argued successfully that reinstatement and back-pay did not address the full measure of her losses, including her emotional injury.
Burlington argued that White wasn’t harmed enough to justify a lawsuit. The Supreme Court focused on just how much employment harm must occur for an employee to prove “adverse employment action”. Requiring an employee to have extreme or obvious economic harm would operate to limit the number of cases that would succeed. On the other hand, requiring little injury would operate to put employer’s on notice that retaliation, even if mild, could result in liability. The test adopted by the U.S. Supreme Court was whether, from the viewpoint of a reasonable employee, the actions taken against the employee were sufficient to deter the employee (and others like her) from complaining about illegal discrimination. The Court found that being without pay for 37 days would deter a reasonable employee from exercising her rights to complain internally of discrimination, even if she had access to a grievance procedure.
The California Supreme Court in Yanowitz v. L’Oreal (2005) addressed much the same question as the U.S. Supreme Court in Burlington, but reached its decision some months before the federal court. The Yanowitz Court held that an employee suing for retaliation under California’s anti-discrimination law must demonstrate that the employer's retaliation caused a "material affect" on the "terms, conditions, or privileges of employment". The State Supreme Court explained that a “material affect” was one that 1) detracted the employee from her job performance, 2) discouraged her from remaining on the job, and 3) kept her from advancing in her career.
The two Courts, while using different standards of “deterrence” [Burlington] or “material affect” [Yanowitz] actually are quite close in how they define “adverse employment action”. Therefore it is likely that California Courts will rely on the analysis of the Burlington Court to decide future State discrimination/retaliation cases. Employee attorneys would be wise to cite the Burlington case as a source of guidance, if not precedent, when presenting proof of "adverse employment action".
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