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Published in Print: December 14, 2005, as High Court May Define ‘Adverse’ Job Action

High Court May Define ‘Adverse’ Job Action

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The U.S. Supreme Court agreed last week to decide a case that could clarify what constitutes an “adverse employment action” in federal employment-discrimination law. The federal appeals courts have used conflicting definitions for the term, which is a key element of retaliation claims under Title VII of the Civil Rights Act of 1964.

The appeal accepted for argument, Burlington Northern and Santa Fe Railroad Co. v. Sheila White (Case No. 05-259), involves a woman whose employer, the railroad company, changed her job assignment and suspended her without pay for 37 days after she filed a sex-bias complaint with the U.S. Equal Employment Opportunity Commission.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held unanimously that the actions were retaliation against her sex-bias complaint and were “adverse employment actions” because her new assignment was more arduous and less prestigious. It said the suspension was a sanction that was “not trivial.”

But five of the 13 judges on the appeals court signed a concurring opinion that said the court should have used guidelines promulgated by the EEOC on what constitutes an adverse employment action, rather than using its own test. That point, plus the fact that other appeals courts have more narrowly defined adverse actions to involve hiring, discharging, promoting, compensating, and granting leave to workers, may have helped persuade the justices to take the case.

Vol. 25, Issue 15, Page 22

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