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High Court to Hear BNSF Worker Case

Posted on: Tuesday, 6 December 2005, 00:00 CST

By Dan Piller, Fort Worth Star-Telegram, Texas

Dec. 6--The U.S. Supreme Court agreed Monday to hear a case concerning a Burlington Northern Santa Fe Railway worker who said that the company retaliated against her by reassigning her to new tasks after she complained of sexual harassment.

The justices agreed to resolve apparently conflicting rulings from U.S. appeals courts on the standard for determining an employer's liability under what federal law calls "adverse employment action" -- retaliatory discrimination in cases involving job discrimination, said Gregg Lemley, a New York labor lawyer who has been following the case.

The employee, Sheila White, worked in the maintenance of way department at BNSF's yard in Memphis, Tenn. In 1997, she complained to the U.S. Equal Employment Opportunity Commission of sexual harassment by her supervisor.

BNSF, which is based in Fort Worth, kept White as a track laborer but removed her from forklift operator duties. When she complained of retaliation, she was suspended without pay for 37 days, then reinstated at full pay, Lemley said.

A federal jury rejected White's claims of sex discrimination but awarded her $43,000 in damages for pay lost during the suspension. The jury did not call the suspension an adverse employment action, Lemley said.

An appeals court in another federal judicial circuit upheld the award and contradicted the lower court by ruling that the 37-day suspension had been an adverse employment action. The appeals court also said that reassignment of duties within the same job classification can constitute retaliation.

BNSF appealed to the Supreme Court.

"We're pleased that the Supreme Court has agreed to hear the case," BNSF spokesman Pat Hiatte said Monday. "We think the issue needs to be resolved due to the conflict between the circuits. It's important for employers to know what's expected of them and that the law be consistently applied."

Lemley, a New York labor law litigator with the firm Bryan Cave, said "employers often need the flexibility to shift employees to different positions." But he added that without protections in the law, employers would be free to use transfers as a method of retaliation.

The case will probably be heard in April, with a decision by the end of the court's term in June.

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Copyright (c) 2005, Fort Worth Star-Telegram, Texas

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BNI,

Source: Fort Worth Star-Telegram (Fort Worth, Texas)

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