Friday, April 14, 2006
Further Update: SCOTUSblog has this further comprehensive analysis of Monday's oral arguments in White.
Update: One commentator points out that this was the issue in this year's Wagner Labor Law moot court competition at NY Law School.
As was discussed a number of months ago in a previous post, the United States Supreme Court has granted cert. in the Title VII retaliation case of Burlington Northern v. White to hopefully once and for all settle a circuit split over the meaning of an "adverse employment action" under the retaliation provisions of Section 704.
The Legal Informational Institute Bulletin from Cornell Law School provides this summary of what will be argued on Monday:
Title VII of the Civil Rights Act of 1964 forbids employers from retaliating against an employee who opposes discriminatory practices. However, the requisite provision,
42 U.S.C. § 2000e-3(a) [Section 704(a)], does not define what kinds of adverse employment decisions are actionable.
Courts of Appeal have adopted three different standards to guide this
determination: the Sixth Circuit prohibits any "materially adverse change in the terms of employment;" the Ninth Circuit prohibits any adverse treatment "reasonably likely to deter" the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an "ultimate employment decision."
In this case, the Sixth Circuit held that a temporary suspension rescinded by the employer with full back pay, or an inconvenient reassignment, constituted actionable adverse employment decisions. The Supreme Court must now determine which of the foregoing standards is correct.
Interestingly, one of my students in my Employment Law class this semester has been doing work to help prepare the plaintiffs' side of the case for oral argument as his father's firm has been litigating this case from the beginning (the case originates in Memphis). I told him, the swell guy that I am, that he did not have to be in class on Monday.
For an excellent analysis of how this case might come out, see Ross' Employment Law Blog. Ross dubs this case as "the most important employment law case of the year." Me, personally, I think the Court is most likely to split the baby on this one and adopt the "materially adverse change" standard.