Businesses brace for Supreme Court ruling

Thursday, Dec. 8, 2005 | 8:26 a.m.

The U.S Supreme Court is being asked to lay out ground rules for how employers treat workers who file harassment complaints.

The court accepted a Tennessee case that has employment lawyers agreeing on one thing -- the outcome could prove costly for either businesses or workers.

The case focuses on a Memphis, Tenn., forklift operator, Sheila White, who complained that her foreman at Burlington Northern Santa Fe Railway was sexually harassing her.

After the foreman was suspended, White was transferred to another job, which paid the same as her previous position but was considered more physically demanding.

She was suspended without pay when she filed a complaint with the Equal Employment Opportunity Commission. A federal jury found she was retaliated against, and an appellate court found the suspension, even though she was reinstated with back pay, constituted an "adverse employment action."

But the U.S. Supreme Court has never addressed what constitutes an "adverse employment action," a fact that has federal appeals courts across the nation at odds.

In Nevada, a right-to-work state, that means that the court's ruling could clarify issues for both workers and businesses.

Culinary Workers Local 226 attorney Richard McCracken said the only protection an at-will worker has comes from discrimination laws. He said nonunionized workers can be fired, denied promotions and suspended in response to complaining of discrimination because they are at-will.

McCracken said he stands by the EEOC's view that "any action that has an adverse effect" meets the muster necessary for filing a retaliatory discrimination claim.

That effect doesn't have to be "gross," he said, however.

"You can tell when someone is dissing you, and that can over time wear on a person to the point they leave a job, but it's really a proof question," he said. "It's too subjective to prove a lack of warmth or acceptance."

For small-business owners in Nevada, the outcome of the White case is arguably more important, according to Christina Dugan, Las Vegas Chamber of Commerce vice president of public affairs.

"Many of our small businesses with four or five employees could be put out of business by even one of these lawsuits, so we need to make sure the suits are legitimate," Dugan said. "I hope the court will strike the appropriate balance on this issue for employers and employees."

The Chamber of Commerce has 7,000 members with 85 percent consisting of businesses with 25 or fewer employees.

Ann Reesman, general council for the Equal Employment Advisory Council, an association of 320 corporations across the country who filed a friend-of-the-court brief in the case, said U.S. employers should be concerned about the outcome.

"If the court rules in White's favor, it could open the floodgate for claims based on virtually any action an employee finds to be unpleasant," she said.

Reesman contends these claims could potentially cost corporations millions of dollars.

Data gathered from the EEOC show retaliation cases filed by workers have roughly doubled over the past 12 years, which makes it the fastest growing basis for complaints in job discrimination cases during that time, she said.

She singled out the 9th U.S. Circuit Court of Appeals, which encompasses Nevada, as an appellate court that needs such direction.

"In the 9th Circuit almost any unpleasant action by an employer can be the basis for a retaliatory claim," Reesman said. "The fear of being reassigned to an office where the air conditioning doesn't work could be a valid basis for a claim in that circuit right now."

Matt Pordum can be reached at 474-7406 or at pordum@lasvegassun.com.