I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.

NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s "no blood no foul" rule.

The NBA’s "No Blood No Foul" Rule

If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the "standard" by which the referees decide how much contact will result in a personal foul being called. It’s the "no blood no foul" rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the "no blood no foul" rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify "contact". So the appearance of blood is a more "objective" indication that the contact really mattered and really constituted an unfair interference with the other player.

The Supreme Court Struggles With "When is There a Foul"?

Courts for years have struggled with the employment discrimination equivalent of the "no blood no foul" rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.

Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.

Three Approaches on Whether There is a Discrimination Foul

Before the supreme court’s decision in Burlington Northern, the courts had struggled over, in effect, how much blood to require, or even whether to require any blood at all.

We need to put aside, for the moment, claims involving a hostile work environment. In such claims, there is no “blood” requirement. The courts recognize claims for hostile work environment, and will award damages, even where there is no economic consequence, as long as the plaintiff proves that the environment issue was severe or pervasive enough so as to interfere with what he an employee’s work environment. That situation, where the courts do not require any economic consequence, is the exception rather than the rule.

So for retaliation claims, the courts have historically adopted three different tests for determining the minimal level of severity required before the court will recognize a claim for the employee. The following options start with the most severe level of misconduct the rough equivalent of blood veritably gushing out of the NBA player:

First, some courts have only recognized a claim if there had been an "ultimate employment decision" in retaliation for an employee’s opposition to discriminatory conduct. "Ultimate employment decisions" are things like hiring, granting leave, discharging, promoting, and compensating.

Second, moving down in terms of the level of severity, some courts had recognized a claim where there had been an "adverse effect" on the "terms, conditions, or benefits" of employment. That is a broader test because it encompasses conduct by the employer that is on a lower level than the "ultimate employment decisions." For example, suppose an employer negatively evaluates an employee so that the negative evaluation results in a lower raise. Under the "ultimate employment decision" standard, a performance evaluation does not ring the bell. But under the standard of an adverse affect on the "terms, conditions, or benefits" of employment, the negative evaluation would be included, potentially providing the support for the claim of retaliation.

Third, some courts have abandoned any blood requirement at all. The Supreme Court recognized that there was a different rule in terms of the requirement for a specific level of severity between the substantive discrimination provision of Title VII and the retaliation provision. Economic consequence was required under the substantive discrimination provisions, but not under the retaliation provision. This distinction was tied closely to the different language in the prohibition sections on discrimination and retaliation.

Substantive Prohibitions Versus Retaliation Prohibitions

Since this third approach is tied closely to a carefully reading of Title VII’s retaliation provision, let’s look at the difference between the substantive and retaliation provisions in Title VII (and a good but of the Supreme Court’s analysis in Burlington Northern v. White was based on the difference between these provisions).

Section 703(a) of Title VII contains the substantive anti-discrimination provision: "it shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

The anti-retaliation provision of title VII, in section 704(a), has a different prohibition provision: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

The Supreme Court in Burlington Northern v. White noted that the key words in the substantive provision "hire," "discharge," "compensation, terms, conditions, or privileges of employment," employment opportunities," and "status as an employee" "explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision." This is at pages 2411-2412.

"The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provisions seek to prevent harm to individuals based on what they do, i.e., their conduct."

The Supreme Court recognized that the language in the retaliation provision was not limited to conduct in the workplace. "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Examples that the court noted, from earlier decisions, were: an employee of the FBI complained, and the FBI retaliated by refusing to investigate death threats a federal prisoner had made against the employee. Another example: the employer filed false criminal charges against a former employee who complained about discrimination.

"A provision limited to employment-related actions would not deter the many forms of effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s "primary purpose", namely, "[m]aintaining unfettered access to statutory remedial mechanisms."

Thus, "the purpose reinforces what language already indicates", that the "anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment."

Key Ruling: "Materially Adverse" Action

The Supreme Court posed the issue as addressing "the level of seriousness to which this harm must rise before it becomes actionable retaliation." The Supreme Court agreed with the Seventh and District of Columbia Circuits. The Supreme Court concluded that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination"".

The Supreme Court said that it described the rule in terms of "material adversity" to separate "significant from trivial harms." There is no "general civility code for the American workplace." The "ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" must be filtered out of the universe of claims that the courts will recognize. The law will not "immunize" the employee from those "petty slights or minor annoyances that often take place at work and that all employees experience." "Personality conflicts at work that generate antipathy and snubbing by supervisors and coworkers are not actionable" under Title VII. So "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence."

The rule was stated in terms of a "reasonable employee" because the "standard for judging harm" must be "objective." An objective standard is "judicially administrable." That standard avoids the "uncertainties and unfair discrepancies" that can "plague a judicial effort to determine a plaintiff’s unusual subjective feelings."

"Materially Adverse" Action versus "Petty Slights"

The court gave further examples of how to distinguish between "petty slights" and "material" changes that might deter a reasonable employee from complaining about discrimination. For example, while a "schedule change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a young mother with school age children." The court cited one example of an employee with a disabled child needing flex-time scheduling.

The supervisor’s refusal to invite an employee to lunch is normally trivial. But to retaliate by "excluding an employee from the weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination." The court noted that whether action is significantly adverse "will often depend upon the particular circumstances. Context matters." An act that would be "immaterial in some situations is material in others."

The standard is tied to the "challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint."

The key in examining the employer’s challenged retaliatory action is to "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination."

In the case, the employee had been assigned from forklift duty, which was considered desirable, to standard track labor tasks.

"Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spent more time performing the more arduous duties and less time performing those that are easier or more agreeable." Thus, one of the categories of adverse retaliatory action that did not require financial consequence was "unpleasant work assignments."

However, reassignment of job duties is not "automatically actionable." Whether a particular reassignment is "materially adverse" "depends upon the circumstances of the particular case" and should be judged from the "perspective of a reasonable employee in the plaintiff’s position, considering all the circumstances."

The court also found that the fact that the employer suspended White for 37 days with no pay was a materially adverse action, even though the lost income was later paid to the employee. An "indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received back pay."

Justice Alito’s Concurring Opinion

Justice Alito wrote a concurring opinion in which he concurred in the judgment. He would have applied the conventional requirement that the adverse employment action must constitute a "tangible employment action", and he thought the reassignment to the substantially less desirable position and duties constituted such an "adverse employment action."

He was concerned about part II-D of the Court’s opinion, in which the court concluded that the only threshold requirement was materially adverse action that would dissuade a reasonable employee from complaining about discrimination. He thought that test was unnecessary, and that the court should have employed the test requiring some tangible effect on the compensation, terms, conditions, or privileges of employment.

Justice Alito describes a number of policies (“purposes”) behind the anti-retaliation provision in Title VII: (1) preventing employers from engaging in retaliatory measures which will dissuade employees from engaging in protected activity, and (2) prevent harm to individuals that assert their rights.

The Take-Away Rules in Burlington Northern v. White

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to an employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Finally, Back to the NBA

After all of this legal stuff, grab a beer and watch the NBA’s play of the day:

Finally, but only if you are hardcore NBA fan, read the NBA’s Rule 12, Part B on "Personal Foul", under Section I "Types". This will give you the NBA’s real rule on personal fouls:

Prepared by Drew M. Capuder (contact information)

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. sections 3-4 (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment dispute arbitration agreements are enforceable.

Written by Drew M. Capuder (contact information)

Within a few hours of President Obama‘s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a "racist". Sean Hannity called her a "radical" who had made "outrageous" and "amazing" statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).

The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making "policy" during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):

This statement is being used to characterize Sotomayor as an "activist" judge who doesn’t recognize that judges "interpret" (but do not "create") law. Personally, I think that argument is nonsense. Judges all the time analyze statutory and constitutional issues by considering the impact in the real world of their potential decisions. Those are "policy" considerations. For example:

• If an employee has to file a charge of discrimination with the EEOC within 300 days of the "unlawful employment practice", does that mean 300 days of the negative performance review that results in lower pay for the employee, or within 300 days of each pay check the employee receives pursuant to the negative performance review? That was the issue in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007).The Supreme Court in Ledbetter made a number of policy-based arguments in favor of its limitation rule, including discussion of a "policy of repose" which makes it "unfair" for the wronged party not to put the employer on notice of a claim within a specific period of time. See my discussion in this blog of the decision.
• If employment discrimination law prohibits retaliation against an employee who opposes discriminatory conduct, what is the level of severity of the employer’s action that is necessary for the courts to recognize a retaliation claim? That was the issue in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006).  The Supreme Court examined a broad range of policy considerations that focused on the burdens on employers of various possible rulings, and whether employee complaints would be encouraged or discouraged by possible rulings. See my discussion in this blog on the decision.

There is simply no bright (or muddy) line between "law" and "policy", and judges routinely formulate the most appropriate rule of law by examining how the various options are consistent with or promote various policy considerations.

By the time a case gets to the level of a court of appeals, the judges are frequently presented with competing policy considerations which the parties will argue undergird a proposed interpretation of a statute or a constitutional provision. For example, in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007), the Supreme Court had to interpret a provision of Title VII of the Civil Rights Act of 1964 which dealt with when a person has to file a charge of discrimination with the EEOC. Within 300 days of a discriminatory performance review in (for example) 2001 which suppressed a woman’s pay checks compared to her male peers, or within 300 days of a discriminatory pay check she received in 2008 as a consequence of that performance review? It would be intellectually dishonest to suggest that the answer was crystal clear from the language of the statute. So the Courts, routinely, examine the policy consideration behind the statute in question. In Ledbetter, here is an incomplete list of the competing policy considerations that were relevant to the Court’s decision, and all of these policies are unarguably reflected in the statute (Title VII) and relevant legal principles:

• The policy that Title VII should provide a remedy to the employee for discriminatory decisions by employers.
• The policy that Title VII should act as a deterrent to prevent future discrimination by employers.
• The policy that claims should be presented with reasonable promptness to give defendants fair notice of the claims.
• The policy that claims should be presented with reasonable promptness because claims can be adjudicated more competently before witnesses, memories, documents, or other evidence fade or disappear.

The Supreme Court in Ledbetter focused on the policies relating to prompt presentation of claims, and ruled that Ledbetter was required to file her charge with the EEOC within 300 days of the discriminatory performance review. The dissent in Ledbetter focused on the remedial and preventive policies in Title VII. Congress then overruled the Ledbetter decision and concluded that the Supreme Court had misinterpreted the relevant provisions in and policies of Title VII. The Supreme court, in its decision, by any reasonable definition, "made policy" in the result it reached. So did Congress.

Stay tuned, and I’ll discuss the Sotomayor nomination in coming days and weeks.

Prepared by Drew M. Capuder (contact information)

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment pre-dispute arbitration agreements are enforceable.

Prepared by Drew M. Capuder (contact information)

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

Although all 3 of those employees reported, in response to questions by Metro’s human resources investigator, sexually offensive behavior by Mr. Hughes, none of them initiated any sexual harassment complaint themselves.

As a result of its investigation, Metro took no action against Mr. Hughes, the harasser. On the other hand, Metro fired Ms. Crawford and the other two employees who answered the HR employee’s questions–all 3 were fired shortly after the investigation into Mr. Hughes was concluded. Ms. Crawford had been employed at Metro for 30 years.

Case Dismissed: Ms. Crawford Didn’t "Oppose" Sexual Harassment

Ms. Crawford then filed a charge of discrimination with the Equal Employment Opportunity Commission, and then filed suit in federal court in Tennessee, claiming she had been fired in retaliation for her reporting of Mr. Hughes’ sexual harassment.

The Trial Court dismissed her lawsuit, and the US Court of Appeals for the Sixth Circuit affirmed the trial court’s decision. The Sixth Circuit agreed that the lawsuit should be dismissed because Ms. Crawford did not initiate her own sexual harassment complaint, but instead simply responded to questions initiated by Metro in Metro’s investigation into the rumors about Mr. Hughes.

Supreme Court Reinstates Ms. Crawford’s Case, Defining "Opposition"

The US Supreme Court concluded that Mr. Crawford satisfied the retaliation provision of Title VII and reinstated her case. This is why.

Title VII‘s retaliation provision, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice for an employer to discriminate against" an employee because:

• the employee has "opposed any practice made an unlawful employment practice " by Title VII (this is called the "opposition clause"), or
• the employee has "made a charge, testified, assisted, or participated" in any "investigation, proceeding, or hearing" under Title VII (this is called the "participation clause").

In addressing the "opposition clause": The Sixth Circuit concluded Ms. Crawford didn’t "oppose" any discriminatory practice because she didn’t file any complaint herself, and because "opposition" requires "active, consistent" opposition activities. Merely responding to the HR employee’s questions, according to the Sixth Circuit, was not "opposition", so the employer was free to take adverse or retaliatory action against Ms. Crawford. The US Supreme Court rejected this reasoning, as I will discuss below.

The Sixth Circuit also addressed the "participation clause" and concluded Ms. Crawford had no protection against retaliation because she had not "participated" in any complaint proceeding under Title VII. The US Supreme Court did not address this ruling.

The US Supreme Court rejected the Sixth Circuit‘s reasoning on the "opposition clause" and reinstated Ms. Crawford’s case.  The US Supreme Court said the word "oppose" in Title VII should be given its "ordinary meaning", in part based on a dictionary definition, to "resist or antagonize", or to "contend against; to confront; resist; withstand".

The US Supreme Court easily found that Ms. Crawford’s responses to the HR employee’s questions constituted "opposition" to Mr. Hughes’ sexually inappropriate behavior. There was "no reason to doubt" that a person can "oppose" by "responding to someone else’s question just as surely" as by "provoking the discussion", and nothing in Title VII requires a "freakish rule" ("ouch!!" says the Sixth Circuit) protecting an employee who "reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question".

Because the US Supreme Court found Ms. Crawford’s case should be reinstated because she satisfied the "opposition clause," the US Supreme Court did not address the question of whether her statements satisfied the "participation clause".

Justices Alito and Thomas, in their opinion concurring in the result, agreed with the "primary" rationale in Justice Souter‘s majority opinion, but were concerned that some of the language in the majority opinion (referencing part of a dictionary definition) could protect an employee who "silently" opposed discriminatory behavior. They thought there would have to be some public manifestation of the opposition, and they thought Ms. Crawford did so.

Prepared by Drew M. Capuder (contact information)

The Gap In the Federal Employee Section of the ADEA

This was the problem under the ADEA: The ADEA‘s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the "private and state employee sections".

To address age discrimination against federal government employees, the ADEA has a separate section, 29 U.S.C. § 633a, which contains a separate statement of the prohibitions against age discrimination. While the private and state employee sections of the ADEA contain expressly an anti-retaliation provision (29 U.S.C. § 623(d)), the federal employees section does not. The original ADEA was passed in 1967, but the federal employees were not covered until the statute was amended in 1974 to cover them.

So that gets us to US Postal Service employee Myrna Gomez-Perez in Puerto Rico, who asked for a transfer. The transfer was refused so she filed a complaint of age discrimination (she was 45). After she filed the age discrimination complaint, she claimed she was subjected to various forms of retaliation. So she eventually filed suit in the United Stated District Court for the District of Puerto Rico, claiming retaliation. Ms. Gomez-Perez’s lawsuit was dismissed for a different reason (sovereign immunity), and she then appealed to the US Court of Appeals for the First Circuit ("First Circuit"). The First Circuit ruled in her favor on the sovereign immunity issue, but said her case was properly dismissed for a different reason–she was a federal employee and the ADEA‘s federal employee section (29 U.S.C. § 633a) did not prohibit retaliation. Under the First Circuit‘s logic, nothing ADEA prohibited retaliation against federal employees.

The US Supreme Court Fills the Gap

So Ms. Gomez-Perez appealed to the US Supreme Court, which ruled that the federal employee section of the ADEA prohibits “discrimination based on age” (29 U.S.C. § 633a(a)), and that implicitly prohibits retaliation that arises out of prior complaint of age discrimination. The controversy between the majority opinion and the dissenting judges was whether it was appropriate to read into the age discrimination prohibition a corresponding prohibition for retaliation related to an age discrimination complaint. The majority relied on prior decisions which had done precisely the same thing in the context of other anti-discrimination laws.

For example, in Jackson v. Birmingham Board of Education, 544 U. S. 167 (2005), Title IX of the Education Amendments of 1972 prohibited “discrimination” on “the basis of sex” in connection with any education program receiving federal aid. The controversy in that case was over retaliation after a complaint of sex discrimination, and that statute, like the federal employee sections of the ADEA, did not expressly prohibit retaliation again someone who complained about sex discrimination. The US Supreme Court there concluded that “retaliation” was covered by the sex discrimination prohibition. In essence, the US Supreme Court held that if you retaliate against someone who has complained about sex discrimination, then the retaliation is an act of sex discrimination.

So the US Supreme Court for Ms. Gomez-Perez applied the same logic for the ADEA: Since the ADEA prohibited age discrimination against federal employees, then it was an act of age discrimination to retaliate against someone who complained of age discrimination.

The real issue then, in a setting where a statute does not expressly prohibit age retaliation, is whether retaliation is a subset of age discrimination (and therefore covered by the prohibition against age discrimination); or whether the retaliation is conceptually and analytically different. The US Supreme Court, for Ms. Gomez-Perez, and in comparable discrimination settings, has found concluded that retaliation is a subset of the broader prohibition of discrimination.

Prepared by Drew M. Capuder (contact information)

The employer (Sprint) contended that evidence of other alleged age discrimination victims was not admissible where the decision-makers for those other victims were different from the decision-makers who took action against the plaintiff.

The Supreme Court rejected the employer’s argument and said that the evidence of other victims might be admissible, even if different decision-makers were involved. The trial court should conduct a "balancing test" for admissibility of discrimination against other employees by different supervisors, where the relevance of the other employees’ situation is balanced against unfair prejudice to the employer.

Prepared by Drew M. Capuder (contact information); Voice 304-333-5261

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

Ledbetter filed a charge of sex discrimination with the EEOC in 1998 and then later in the year retired. She claimed that, years earlier in her career at Goodyear, male supervisors gave her bad performance reviews compared to what men received. She claimed that Goodyear awarded raises based on those performance reviews, so that her pay raises were reduced as a result of the discriminatory performance reviews.

Ledbetter went to trial and persuaded the jury that the performance reviews, years before she filed her EEOC charge, were discriminatory based on her sex, and the jury found her rights had been violated and awarded her damages based on her lower paychecks throughout her career. The trial judge entered a "judgment" in Ledbetter’s favor based on the jury’s verdict. So Ledbetter won at trial on her sex discrimination claim under Title VII. The Eleventh Circuit Court of Appeals threw out the jury verdict and trial court judgment for Ledbetter, and entered a judgment in favor of Goodyear, based on her failure to file her EEOC charge within 180 days of when the performance reviews had been conducted. The United States Supreme Court affirmed, meaning that Goodyear won.

The Problem for Ledbetter Under Title VII Limitations Provisions

Here was the problem for Ledbetter: Title VII of the Civil Rights Act, which governs sex discrimination in the workplace under federal law, says that an employee must file a charge of discrimination within 180 days (or, depending on the state, 300 days) after the discrimination occurred about which the employee is complaining. The Courts, in examining when the discrimination occurred (for purposes of figuring out when that 180 day "clock" starts to run), have focused on the "discrete" employment "decision" that caused some consequence (usually pay check-related) for the employee. Based on when Ledbetter filed her EEOC charge in 1998, for it to be timely, she had to be complaining about "decisions" which occurred within the 180-day window preceding the charge. But the discriminatory evaluations had occurred years before that, even though the reduced paychecks about which she complained continued into that 180-day window.

US Supreme Court: Ledbetter Loses Because She Didn’t File Her Complaint Quick Enough

The US Supreme Court held that, in a situation where a decision (such as a performance review) was made that discriminated against a female employee by paying her less, the employee was required to file a charge of discrimination with the EEOC within 180 days of when the decision was made and communicated to her. That, for Ledbetter, would have been within 180 days after the bad performance reviews were conducted and the results were communicated to her. Since she did not file EEOC her charge until years later, the charge was not timely under Title VII. The consequence is that she loses all rights under the EEOC charge process, and she loses all rights to file suit on the same claims in Court under federal law.

The US Supreme Court‘s decision was a 5-4 vote that illustrates the ideological divide on the Court. The 5 vote majority consisted of the "conservative"; block on the Court (Alito, Roberts, Scalia, Kennedy, and Thomas), and the 4 vote dissent consisted of the "liberal" block on the Court (Ginsburg, Stevens, Souter, and Breyer).

The Backlash, and Congress Overrules the Supreme Court

The decision got a great deal of press attention, being both praised (Kiplinger Business Resource Center) and condemned (New York Times Editorial). The criticism of the decision generated political movement for Congress to revise the law to undo the decision (NYT editorial and story discussing those efforts). On April 24, 2008, the bill that would have overturned the decision failed to receive the 60 votes required in the Senate to begin consideration of the bill (NYT Article), so the bill died for the time being.

But then after the November 2008 election, where the Democrats gained seats in the Senate, Congress passed, and President Obama signed into law (on January 29, 2009), the Lilly Ledbetter Fair Pay Act (Pub. L. 111-2, sec.1, 123 Stat.5), which overturns the US Supreme Court‘s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). You can review the history of the law on the Library of Congress THOMAS site.

For Supreme Court Groupies

The US Supreme Court‘s decision in Ledbetter is a good opportunity to study the significance of and controversy generated by the US Supreme Court‘s decisions. Read the press accounts when the decision was issued from the New York Times and the Washington Post. You can also listen, on the Oyez site, to the oral argument in the case before the Supreme Court, and the announcement at the Supreme Court of the decision and dissent. Or read the transcript of the oral argument. You can also read the briefs in the case at FindLaw.com. Read a summary of the decision in the Harvard Law Review.

Summary prepared by Drew M. Capuder (contact information); Voice: 304-333-5261

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Summary prepared by Drew M. Capuder (contact information); Voice: 304-333-5261