Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

June 22, 2006
By: Kevin Drum

COMMON SENSE....When I first read about Burlington Northern & Santa Fe Railway Co. v. White, I was astonished. The basic facts are simple: In 1997, Sheila White complained of harrassment by a supervisor, and although the supervisor was suspended and ordered to attend a sexual-harassment training session, White was transferred to a more arduous job and was later suspended for 37 days after getting into a dispute with another worker.

The new job paid the same as the previous one and White was eventually vindicated in the worker dispute and received 37 days of back pay. This led Burlington Northern to argue that there had been no retaliation because, in the end, there was no monetary damage.

This argument is so prima facie absurd that I had a hard time believing any judge had taken it seriously. Today, in an effort to restore my faith in the universe, the Supreme Court ruled unanimously that this was, in fact, an absurd argument:

"Many reasonable workers would find a month without a paycheck to be a serious hardship," Justice Stephen Breyer wrote for the court.

....Breyer said workers could sue for retaliation over "materially adverse" employer actions. "In the present context, that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination," he wrote.

This is common sense at its finest: Retaliation is anything that would make a reasonable person fear filing a complaint, and monetary damages aren't the only way to retaliate. Any first grader knows as much.

Thank you, Stephen Breyer.

Kevin Drum 3:20 PM Permalink | Trackbacks | Comments (44)

Bookmark and Share
 
Comments

And thanks to the rest of the court--even Roberts and Alito--who endorsed Breyer's reasoning.

Posted by: Steven desJardins on June 22, 2006 at 3:43 PM | PERMALINK

I agree with Cheney.

Posted by: Al on June 22, 2006 at 3:45 PM | PERMALINK

What's that noise I hear?
Is it a donkey braying?

Yes, its a republicant apologist whining about lefty, interventionist judges.

Posted by: Pierre Asciutto on June 22, 2006 at 3:46 PM | PERMALINK

Alito didn't endorse Breyer's reasoning. Quite the opposite -- he wrote a concurring opinion that endorsed the result, but complained that the reasoning would lead to problems for employers. Which, unfortunately, is the exact kind of reactionary thinking we can expect from this court for the next 30 years.

Posted by: Fred App on June 22, 2006 at 3:48 PM | PERMALINK

Charlie is going on vacation? From what? All he does from his desk there at Palumbo & Bergstrom is dump shit on this blog.

Posted by: Alek Hidell on June 22, 2006 at 3:54 PM | PERMALINK

I'm going on vacation starting tomorrow, so you'd better be ready to step back up to the plate, amigo ; )
Posted by: Cheney

What do you want to bet that Charlie, Don Pee, and GOP all stop posting while Dickhead is on vacation?

Posted by: MeLoseBrain? on June 22, 2006 at 3:59 PM | PERMALINK

Agreed with Fred.

This is a scary decision because Alito's rejection of the majority's reasoning in his solo concurrence marks him as more wingnutted than Scalia.

Posted by: Disputo on June 22, 2006 at 4:00 PM | PERMALINK

Hey dumb asses...

Alita, Scalia, et al didn't endorse the logic of Breyer. He was assigned the majority opinion by Chief Justice Roberts in conference. It was known at conference that this would be a 9-0 decision because they take preliminary votes before deciding who should get the assignment to write the majority opinion.

Assignments are designated according to the relative workload of each of the Justices.

Seriously, learn something about the subject before you go typing your ignorance for all to see.

Posted by: Birkel on June 22, 2006 at 4:05 PM | PERMALINK

Alito -- darn it

Posted by: Birkel on June 22, 2006 at 4:07 PM | PERMALINK

They were hoping to financially bleed the plaintiff to death. It was a bluff. That the court granted cert was the surprise to me.

Posted by: jonst on June 22, 2006 at 4:09 PM | PERMALINK

Alita, Scalia, et al didn't endorse the logic of Breyer. He was assigned the majority opinion by Chief Justice Roberts in conference. It was known at conference that this would be a 9-0 decision because they take preliminary votes before deciding who should get the assignment to write the majority opinion.

"Alita" isn't on the court; Alito wrote an opinion concurring with the result but disagreeing with the rationale. All the others on the Court (Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ.) who didn't pen separate opinions but instead joined in the majority opinion did, by that very action, endorse both the reasoning and the result in Breyer's opinion.

Seriously, learn something about the subject before you go typing your ignorance for all to see.

Physician, heal thyself.

Posted by: cmdicely on June 22, 2006 at 4:11 PM | PERMALINK

Not only is Birkel wrong, his point is nonsense.

Alito did not sign onto the majority opinion; he wrote his own concurring opinion.

Scalia did indeed sign onto the majority opinion.

And whoever is "assigned" to write an opinion is credited with, well, *writing* that opinion. Duh.

Posted by: Disputo on June 22, 2006 at 4:12 PM | PERMALINK

cmdicely,

He wrote for the majority, dumb ass. That doesn't mean they "endorsed" him. They "concurred" with him. It's a both a difference and a distinction.

I won't argue with ignorance.

Posted by: Birkel on June 22, 2006 at 4:13 PM | PERMALINK
That the court granted cert was the surprise to me.

The Court granted cert., as noted in the decision, because a considerable difference -- with three different rules -- had emerged between the federal circuits, which this case presented an opportunity to resolve.

Posted by: cmdicely on June 22, 2006 at 4:15 PM | PERMALINK

Why not? Barrattry won't work without the co-operation of the Barrister. Now all they need is a fool-proof mechanism to pass money under the table.

Posted by: Osama_Been_Forgotten on June 22, 2006 at 4:15 PM | PERMALINK

Birkel muses:
I won't argue with ignorance.

Then please stop talking to yourself.

Posted by: Disputo on June 22, 2006 at 4:16 PM | PERMALINK

Poor Birkel, nothing worse than making an ass of yourself while trying to proof you're not an idiot.

Keep trying, if at first you don't succeed. At this rate, generation descendants would be smart enough to become progressives.

Posted by: GOD on June 22, 2006 at 4:16 PM | PERMALINK

Blah blah blah, I am so angry, yet, so boring.

Posted by: fat smelly birkel on June 22, 2006 at 4:23 PM | PERMALINK

He wrote for the majority, dumb ass. That doesn't mean they "endorsed" him. They "concurred" with him. It's a both a difference and a distinction. I won't argue with ignorance.

Birkel, unfortunately all of the liberals are ignorant. That's why it's impossible to have a rational argument with them.

Posted by: Al on June 22, 2006 at 4:23 PM | PERMALINK
He wrote for the majority

Yes, he did.

That doesn't mean they "endorsed" him.

Correct. Whether they endorsed him, however, is not at issue. They endorsed the reasoning in the opinion he wrote by joining in the opinion and not writing a separate concurrence.

Opinions are, of course, passed around before being finalized, and those who disagree with them in either result or reasoning are free to write their own opinions. Which is why opinions on the same case will often refer to each other.

They "concurred" with him. It's a both a difference and a distinction.

No, they "joined" in the opinion; which is exactly the same as endorsing it. Alito merely "concurred"hence, the concurring opinion.

The difference is important, its just that you've completely missed where it is.

I won't argue with ignorance.

When do you propose to bring anything else to the argument? Or have you been treating us to dishonesty rather than ignorance?

Posted by: cmdicely on June 22, 2006 at 4:23 PM | PERMALINK

Yeah, but what about those ~500 utterly useless 1980's vintage artillery shells that used to have chemical weapons in them that no person with more that 2 ounces of functioning brain tissue could possibly think constitutes post-hoc justification for the invation of Iraq?

Also, Birkel, quit while you're behind.

Posted by: phleabo on June 22, 2006 at 4:25 PM | PERMALINK

Leave Birkel alone!

I'm the only one allowed to ream his ass, and boy does he have an ass-reaming in store when he gets home tonight.

Posted by: Birkel'sMaster on June 22, 2006 at 4:29 PM | PERMALINK

Birkel, cmdicely is correct (this does happen on occasion, especially on procedural matters). leave it alone.

for those making much of Alito's concurrence...I haven't read his concurring opinion yet...but I'm sure there's a decent summary on Scotusblog.
hey, he agreed with the holding, if he got there via somewhat different reasoning than the majority, that doesn't make him reactionary (or, at least, you can't determine that from this particular concurring opinion)...

Posted by: Nathan on June 22, 2006 at 4:30 PM | PERMALINK

ok, I've glanced at Alito's concurrence.

he agrees that the facts in this case could meet the Title VII definition of retaliation...thus he agrees with the holding.
however, Alito asserts that the majority's standard is not an accurate reading of Title VII and is thus overstated.

Posted by: Nathan on June 22, 2006 at 4:34 PM | PERMALINK

I agree with Nathan. You can't discern Alito's reasoning from the article. So arguing about Alito's concurring opinion is pretty silly.

Posted by: Quinn on June 22, 2006 at 4:38 PM | PERMALINK

What's going on? Since school is out are all the 5th graders flocking to this blog?

For those unable to perform their own web search, the opinion can be found here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-259

Posted by: Disputo on June 22, 2006 at 4:43 PM | PERMALINK

As someone who practices in this area, I have to say I have no idea what the decision means. The result is right and perfectly obvious, under just about any of the competing standards (Alito's concurrence picks a different standard and says White should win anyway), and the 6th Circuit eventually got it right, so the only reason to take the case is to clarify the law. Except they didn't do that. The words sound as if they mean something, but I have absolutely no idea if any actual cases will be decided differently, or whether the Court took the case just to change the language in which the same old decisions get made the same way. I predict years of squabbling.

Posted by: C.J.Colucci on June 22, 2006 at 4:58 PM | PERMALINK
You can't discern Alito's reasoning from the article. arguing about Alito's concurring opinion is pretty silly.

From article, perhaps not, but you sure can from actually reading hisopinion, which goes right out and endorses the middle position of the three the majority opinions notes were held by the diverse circuits (running, from broadest to narrowest):

  1. the "dissuade a reasonable worker" standard (adopted by the majority)
  2. the "materially adverse employment action" (Alito's preferred standard)
  3. the "ultimate employment decision" standard (which, apparently, no one on the Supreme Court likes)

I do think, though that people (starting with Alito himself) are overplaying the significance of the differences between the majority rule and the rule Alito embraces.

Posted by: cmdicely on June 22, 2006 at 4:59 PM | PERMALINK

Today, in an effort to restore my faith in the universe, the Supreme Court ruled unanimously that this was, in fact, an absurd argument:

Does it restore your faith in the "extreme right-wing" Republican nominated judges? Are you glad that Roberts assigned Breyer to write the opinion?

Posted by: republicrat on June 22, 2006 at 5:22 PM | PERMALINK

cmdicely, collucci:

agreed. heck, as far as I can tell, for something to dissuade a reasonable worker it would have to be materially disadvantageous....though I think I prefer the second wording....

Posted by: Nathan on June 22, 2006 at 5:24 PM | PERMALINK

This is a scary decision

Sheesh. It was unanimous.

Posted by: republicrat on June 22, 2006 at 5:26 PM | PERMALINK

What's going on? Since school is out are all the 5th graders flocking to this blog?

For those unable to perform their own web search, the opinion can be found here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-259

Posted by: Disputo on June 22, 2006 at 5:26 PM | PERMALINK

Nathan: Thanks for the idea, which I may have to steal. I actually won a case literally yesterday in which the judge relied on the materially adverse employment action standard used (until today) in this Circuit, and I fear a motion to reconsider.

Posted by: C.J.Colucci on June 22, 2006 at 5:40 PM | PERMALINK

[sorry for the repost]

Alito outs himself as a crank when he suggests that his test is the narrower one:

"Under the majority's test, however, employer conduct that causes harm to an employee is permitted so long as the employer conduct is not so severe as to dissuade a reasonable employee from making or supporting a charge of discrimination."

Apparently Alito has not read the test, which reads in full:

In our view, 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.'"

What is at stake here is that Alito wishes to limit the test to "employment actions", whereas the majority recognizes that there are plenty of actions that an employer can take that are materially adverse to the employee but which are not "employment actions".

Posted by: Disputo on June 22, 2006 at 5:44 PM | PERMALINK

Cheney's correct.

I meant broader.

Posted by: Disputo on June 22, 2006 at 5:53 PM | PERMALINK

"Alito ... complained that the reasoning would lead to problems for employers."

Oh, goodness gracious. We can't have PROBLEMS for EMPLOYERS. Oh no.

Posted by: Republican't on June 22, 2006 at 6:03 PM | PERMALINK

Disputo: you might want to read the text of Title VII to see where Alito's coming from (although your reading is wrong anyway).

Collucci: good luck. I'm sure you will get that motion to reconsider, they'd be fools not to file it.

Posted by: Nathan on June 22, 2006 at 6:03 PM | PERMALINK

Please tell me you don't have a law degree, Birkel.

Posted by: dj moonbat on June 22, 2006 at 6:13 PM | PERMALINK

Wouldn't it make more sense to transfer the harasser to a different job, and leave the harassee in her position? Why should SHE be transferred because of another's bad actions?

Posted by: Ol'Froth on June 22, 2006 at 7:57 PM | PERMALINK

We offer auto insurance, home insurance, travel insurance, life

insurance, personal loans,car donation, breakdown cover and much more!

So if you are searching for the policy to suit you, look no further than here.

Posted by: sunday on June 23, 2006 at 12:28 AM | PERMALINK

CJ's right. in theory this is sensible - no retaliation means no retaliation, and the statute doesn't say it has to hit the pocketbook to count.
but in practice it will open the gates to tons of cases in which the courts will struggle to determine whether giving someone a tepid review, or treating him rudely in the hallway, is something that would deter a reasonable person from engaging in protected conduct.
like much of what the S Ct does in employment law these days, the result will be a mixed bag for employees, bad for employers, and very, very good for lawyers.

Posted by: Chris on June 23, 2006 at 10:12 AM | PERMALINK

[url=http://artsmediamag.com/comments/westin-nerf-bars.html]nerf bars westin[/url] nerf bars westin http://artsmediamag.com/comments/westin-nerf-bars.html [url=http://artsmediamag.com/comments/callaway-clone-golf-clubs.html]callaway clone golf clubs[/url] callaway clone golf clubs http://artsmediamag.com/comments/callaway-clone-golf-clubs.html [url=http://artsmediamag.com/comments/eczema-cream.html]elidil cream eczema[/url] elidil cream eczema http://artsmediamag.com/comments/eczema-cream.html [url=http://artsmediamag.com/comments/ram-golf.html]ram 17 piece golf club set[/url] ram 17 piece golf club set http://artsmediamag.com/comments/ram-golf.html [url=http://artsmediamag.com/comments/discount-steel-buildings-nevada.html]discount steel buildings nevada[/url] discount steel buildings nevada http://artsmediamag.com/comments/discount-steel-buildings-nevada.html [url=http://artsmediamag.com/comments/flowers-for-funerals.html]flowers for funerals[/url] flowers for funerals http://artsmediamag.com/comments/flowers-for-funerals.html [url=http://artsmediamag.com/comments/bathroom-remodeling-virginia.html]bathroom remodeling virginia[/url] bathroom remodeling virginia http://artsmediamag.com/comments/bathroom-remodeling-virginia.html [url=http://artsmediamag.com/comments/coffee-syrup.html]flavored coffee syrups[/url] flavored coffee syrups http://artsmediamag.com/comments/coffee-syrup.html [url=http://artsmediamag.com/comments/off-road-golf-carts.html]off road golf carts[/url] off road golf carts http://artsmediamag.com/comments/off-road-golf-carts.html [url=http://artsmediamag.com/comments/una-paloma-blanca.html]una paloma blanca - george baker selection[/url] una paloma blanca - george baker selection http://artsmediamag.com/comments/una-paloma-blanca.html

Posted by: stephanie on June 24, 2006 at 2:50 PM | PERMALINK

[url=http://artsmediamag.com/comments/westin-nerf-bars.html]nerf bars westin[/url] nerf bars westin http://artsmediamag.com/comments/westin-nerf-bars.html [url=http://artsmediamag.com/comments/callaway-clone-golf-clubs.html]callaway clone golf clubs[/url] callaway clone golf clubs http://artsmediamag.com/comments/callaway-clone-golf-clubs.html [url=http://artsmediamag.com/comments/eczema-cream.html]elidil cream eczema[/url] elidil cream eczema http://artsmediamag.com/comments/eczema-cream.html [url=http://artsmediamag.com/comments/ram-golf.html]ram 17 piece golf club set[/url] ram 17 piece golf club set http://artsmediamag.com/comments/ram-golf.html [url=http://artsmediamag.com/comments/discount-steel-buildings-nevada.html]discount steel buildings nevada[/url] discount steel buildings nevada http://artsmediamag.com/comments/discount-steel-buildings-nevada.html [url=http://artsmediamag.com/comments/flowers-for-funerals.html]flowers for funerals[/url] flowers for funerals http://artsmediamag.com/comments/flowers-for-funerals.html [url=http://artsmediamag.com/comments/bathroom-remodeling-virginia.html]bathroom remodeling virginia[/url] bathroom remodeling virginia http://artsmediamag.com/comments/bathroom-remodeling-virginia.html [url=http://artsmediamag.com/comments/coffee-syrup.html]flavored coffee syrups[/url] flavored coffee syrups http://artsmediamag.com/comments/coffee-syrup.html [url=http://artsmediamag.com/comments/off-road-golf-carts.html]off road golf carts[/url] off road golf carts http://artsmediamag.com/comments/off-road-golf-carts.html [url=http://artsmediamag.com/comments/una-paloma-blanca.html]una paloma blanca - george baker selection[/url] una paloma blanca - george baker selection http://artsmediamag.com/comments/una-paloma-blanca.html

Posted by: stephanie on June 24, 2006 at 2:50 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly