Altered duties, suspension constitute retaliation.

Assigning a worker to less desirable duties after she complained about a supervisor's behavior and then suspending her after she alleged retaliation constituted illegal retribution, according to a ruling handed down in June by the U.S. Supreme Court.

Sheila White had been a forklift operator with Burlington Northern, the second largest railroad in the United States, when she complained in 1997 that her supervisor had repeatedly told her that women should not be working in the Maintenance of Way department and had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended the supervisor for 10 days and ordered him to attend a sexual-harassment training session. At the same time, Burlington removed White from forklift duty and assigned her to standard track laborer tasks, saying that a "more senior man" should have the "less arduous and cleaner job" of forklift operator.

White filed a complaint with the Equal Employment Opportunity Commission claiming that the reassignment of her duties amounted to gender-based discrimination and retaliation for her having complained about her supervisor. Two months later, White and her immediate supervisor had a disagreement that resulted in her being charged with insubordination and suspended without pay. White invoked internal grievance procedures that led Burlington to conclude she had not been insubordinate. Burlington reinstated White to her position and awarded her back pay for the 37 days she was suspended. White then filed a retaliation charge with the EEOC based on the suspension.

Title VII of the Civil Rights Act of 1964 forbids employment discrimination against "any individual" based on that individual's "race, color, religion, sex, or national origin." A separate section of the act--its anti-retaliation provision--forbids an employer from "discriminat[ing] against" an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceeding.

Burlington did not question that the motivation for its acts was retaliatory but said a reassignment of job duties could not constitute retaliation since both the forklift and track laborer positions fell within the same job description. The Supreme Court ruled otherwise.

"Almost every job category involves some responsibilities and duties that are less desirable than others," wrote Justice Stephen Breyer in the unanimous opinion. "Common sense suggests that one good way to discourage an employee from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable."

The court acknowledged that a reassignment of job duties is not "automatically actionable" and depends on the circumstances of the particular case. "But here," Breyer wrote, "the jury had before it considerable evidence that the track labor duties were by all accounts more arduous and dirtier."