Burlington Northern & Santa Fe Railway Company v. White (2006)
In the summer of 1997, Sheila White drove from her home in the Whitehaven neighborhood of Memphis to a job interview at a sprawling rail yard operated by Burlington Northern & Santa Fe Railway, fifteen miles southeast of downtown. White, then forty-one and a single mother of three, had been out of work for close to a year, laid off during a downsizing from her machine operator job with pharmaceutical giant Schering-Plough. In that position and prior jobs, she had learned to operate a forklift, a fact that came as good news to one of White’s interviewers, Marvin Brown, Road Master of the Memphis rail yard.
Although White had applied to be a track laborer, whose primary duties were to repair and maintain rail lines throughout BNSF’s freight system, Brown needed someone who could work the Memphis Yard’s forklift; the man who had been doing the job had recently taken a different position with the company. After a successful second interview and passing the company physical, White reported for duty on July 2, 1997. She was the only woman out of roughly one hundred employees in her department.
White had grown up in Memphis, the elder of two daughters. Petite and effusive, with a round face framed by close-cropped platinum blond hair, White speaks deliberately, with a pronounced Southern accent and polite precision. She credits her parents, Leon, a high school history teacher, and Ruby, a social worker, with instilling in her a social conscience. Like any African American of her generation who grew up in the South, White remembers the routine indignities of being relegated to the back of the city bus and forced to shop in the basement “colored” section of clothing stores. Her high school was integrated in name only; white students bullied White and her friends, and the Fairley High yearbook featured two sets of couples crowned as “Miss and Mister Fairley.” (The African American couple’s photograph was black and white while the white couple’s was in color.) Although White’s parents supported the civil rights movement that roiled the city throughout White’s preteen and teenage years, they were eager for her to stay safely on the sidelines, so the few times she joined demonstrations to protest segregated shops and restaurants in downtown Memphis, she had to sneak out of the house.
White had her first child, a daughter, in her senior year, and married her high school sweetheart. They stayed together for four more years, having a second daughter before divorcing. She eventually married again and had her third child, a son. By the time White began working at BNSF in the summer of 1997, her second marriage had ended and she had built a life around her children, church, friends, and volunteer activities. (One of her favorites was sewing the uniforms for the flag bearers for Fairley High’s marching band.) Both daughters were in college, and her son was in high school. White was thrilled to have secured a job paying close to $15.00 an hour, with generous benefits, such as health coverage and a pension plan. She saw it as a job that would see all three kids through their college educations and provide for a comfortable retirement.1
White’s direct supervisor in the Memphis Yard was longtime BNSF employee Bill Joiner. On her first day, White was stunned when Joiner interrupted an orientation speech he was delivering to her and five other workers to address her specifically. “Sheila, when you come on your period, you let somebody know so we can make your job lighter on you.” Nearly two decades later, White was still incredulous recalling that moment. “I froze, because I couldn’t believe that he would say that.” It was the first time she ever had been treated differently on the job because she was a woman. “And so something told me, you better be careful.”
White’s intuition was right. Joiner constantly told her that the railroad was “no place for a woman” and that she should find another job. He wouldn’t give her any overtime hours, while men with the same or less seniority as White routinely were assigned after-hours work. Joiner refused to provide her with a company-issued raincoat, even though her male coworkers received theirs and she frequently was called on to work in inclement weather. And he told White that Road Master Marvin Brown—despite having just helped make the decision to hire White—wanted Joiner to find a reason to fire her within her sixty-day probationary period, before the protections afforded by her union contract could take effect.
Joiner was not the only man making White’s life miserable at work. As one supervisor later described it, there was a “general anti-woman feeling” at the Memphis Yard.2 Perhaps emboldened by their openly biased boss, other coworkers also told her that a woman shouldn’t be working there. The road crews reported their sexual exploits while traveling to far-flung locations to work on track lines. The only bathroom at the Memphis Yard was unisex and didn’t have a working lock; after being walked in on one too many times by her coworkers, White asked for the lock to be repaired, but no one was interested in fixing it. She started borrowing a sympathetic coworker’s truck to drive to a nearby BNSF office where there was a women’s restroom; if she didn’t have to stop for train crossings, she could usually make it there and back in about five minutes.
On September 10, 1997, White was called in the middle of the night to the site of a train derailment. When Bill Joiner arrived on the scene, he summoned her to the other side of one of the rail cars, away from her huddled group of coworkers. “And he said, ‘Come here, Sheila. Shine that flashlight on me so I can see where I’ma pee at,’” recalled White. “I thought that was very disgusting. You’re exposing yourself and want me to shine the light on you? I told him I wasn’t gonna do nothing like that.”
White filed a complaint with BNSF. In a handwritten statement, she said that “foreman Joiner has a problem working with coworkers of the opposite sex” and described the various ways he had singled her out for mistreatment over the past two and a half months. Later that day, she met with Marvin Brown and his supervisor. The two men read over the statement—chuckling together when they got to the urination incident—and promised White they would submit the complaint to BNSF’s human resources department for investigation.
Ten days later, Brown called White into a meeting. This time, an HR representative was with him. Brown told White that the company’s inquiry had confirmed that Joiner had harassed her and that he was going to be suspended for ten days without pay and required to attend sensitivity training. A letter of reprimand would also be placed in his permanent personnel file. Unfortunately, that wasn’t all. Brown explained that because some male coworkers interviewed during the investigation had complained that White’s job, as forklift operator, was easier than theirs, she no longer would hold that position. Instead, it would be reassigned to the man who previously held the job, and White would be performing the usual track laborer duties. What’s more, Joiner would still be her direct supervisor after he returned from his suspension. “I started crying,” White recalled. “I told [them they were] wrong for doing me like that because that wasn’t right. They found Bill Joiner guilty, and why should they take me off the forklift because they found him guilty?” White told the men that she thought the change in her duties was retaliatory, but they were unmoved.
White was disconsolate. She loved working on the forklift, the skill it took and the satisfaction she got from doing it well. And as evidenced by her coworkers’ grumbling, it was a coveted position; regular track laborer duties were much more difficult. Under the hot Tennessee sun, workers dismantled and assembled rail lines, loaded and unloaded heavy equipment from trucks, cleared brush, and cleaned up waste that blocked the tracks. The job required them to get much dirtier, using oil to lubricate tools and machinery, inhaling dust from the rocks used to line the tracks, and sometimes working on their hands and knees. They also were often required to leave their families behind and travel to distant locations, working multiple overtime shifts for days or even weeks at a time. (White cited the common wisdom around the Memphis Yard: “First thing a man going to ask you on that job, ‘Are you married?’ You say, ‘Yes.’ ‘Well you gon’ be divorced.’”) Even though the job paid the same wages as working on the forklift, White was convinced that the transfer was intended as punishment for complaining.
A woman at White’s church worked for the EEOC and told her to visit the office to file a charge. White followed her advice, taking with her the pile of pocket notebooks she had been filling with scribblings about her life at BNSF since her first day on the job, and explained her story to the EEOC investigator.
White had been fairly sure that Joiner’s comments about her period and his hostility toward having a female employee were against the law, but she didn’t know whether her removal from the forklift was. The EEOC investigator, though, told her that Title VII also forbids retaliation against an employee who has complained about discrimination. Protecting individuals from retaliation goes hand in glove with advancing Title VII’s broader goal of ending discrimination; if employees are too afraid to report biased treatment because they can be punished with impunity, such treatment will continue to flourish.
The investigator told White that she believed the transfer off the forklift was illegal retaliation for having filed a written complaint about Joiner. On October 10, 1997, White filed a charge alleging just that.
* * *
White was flying blind in her new position on the tracks. “I didn’t know the first thing about how to do the work,” she said. Ignorance was dangerous when handling equipment that could weigh more than a hundred pounds—“You could easily get killed or hurt out there”3—so she got up to speed by watching her coworkers and enlisting the friendlier ones as her tutors. She enjoyed the collaboration and learning new skills, such as how to use a jackhammer to drill spikes that would join tracks, plates, and rail ties.
But according to White, BNSF did everything it could to isolate her and force her to quit. After all, at that point she had filed not only an internal complaint but a formal charge with a federal agency. She often was assigned to do tasks by herself that could be done safely only by two or more people. If she got along too well with her crew, White would suddenly find herself transferred to a new assignment, often out of town and even out of state. On those trips, White frequently was partnered with BNSF workers and supervisors from all over the region. Her reputation preceded her. “Each state I worked in, they knew who I was. I had a foreman [who] said, ‘You’re Sheila White.’ I didn’t even have to introduce myself. He said, ‘You gonna follow rules and do what I say do.’”
At least White didn’t have to keep working with Bill Joiner. Shortly after returning from his suspension—which he laughingly declared a “vacation” and claimed he had been paid for his time off—Joiner was granted a transfer to an Arkansas post. A young African American man named Percy Sharkey took over as White’s foreman. It was clear from the outset, though, that Sharkey was not going to make White’s life any easier. “You’re going to do what I tell you to do and don’t ask any questions,” he told her. Sharkey also reported to White that Marvin Brown thought she was a “troublemaker” and wanted to “get rid” of her. White remembered, “Mr. Brown was calling Sharkey every day. He wanted to know my whereabouts, what I be doing and what time I got there, what time I was leaving.”
White learned that other supervisors also were under orders from Brown to scrutinize her every move, in the hope of catching her in a fireable offense; she even heard a rumor that whoever succeeded would get assigned a brand-new company truck. Sometimes Brown conducted his own surveillance. “He would come down in his truck and sit there on my job site and just stare at me while I was working,” said White. Of course, having a target on her back didn’t endear White to her coworkers. Just riding in a truck with her meant getting stopped by the foreman to check that everyone was wearing a seat belt.
The strain of being under the microscope began to get to White. As fall turned to winter in 1997, she retreated into what she called a “deep shell depression.” She “couldn’t hardly think, couldn’t hardly drive.” Despite being constantly fatigued, she couldn’t sleep either. She stopped socializing with friends and family and dropped her church and volunteer activities. She struggled with headaches and bouts of crying that she couldn’t control. White’s older daughter, Monica, later testified at trial that her mother became “isolated” and “withdrawn,” prompting her to come home from college in Knoxville at least twice a month to try to cheer White up. “She used to be my best friend, my sister,” Monica said. “But [now she] wasn’t.”4
On December 4, 1997, White filed a new EEOC charge claiming that the company’s increased scrutiny was retaliatory. One week later, White was dispatched with a Memphis crew to do track work in Blytheville, Arkansas. When the morning’s assignments were distributed, Sharkey told one of the Memphis workers, Greg Nelson, to ride along with him and directed White to join a group headed by a foreman from the local rail yard. White went to join the Memphis foreman’s truck, as she’d been told, but he refused to let her in. Instead, Greg Nelson got in the foreman’s truck, and the convoy drove off without her. When White returned to the staging area and told Sharkey what had happened, he was irate. After making a phone call to Marvin Brown, Sharkey informed White that she had been insubordinate and was suspended without pay, effective immediately, and should return to Memphis. Greg Nelson, however, was not disciplined.
White filed yet another EEOC charge, alleging that the suspension constituted further retaliation. She also contacted her union representative, who initiated the company grievance procedure, seeking to rescind the suspension. But then all she could do was wait. It was the worst possible time to be without income; Christmas was just two weeks away, and White had no idea when—or if—she would get another paycheck. She later testified at her trial about that holiday season, “That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad. . . . I got very depressed because . . . I couldn’t even have a Christmas dinner, a meal. . . . I was anxious, couldn’t sleep at all, and I was just destroyed.”5 With a new school semester about to begin in January, White couldn’t make her daughters’ college tuition payments and had to ask her parents for money. They and White’s friends stepped in to help with groceries and other necessities, and with their assistance she was able to stay afloat financially.
White knew she needed help coping with the emotional fallout of her job as well. In early January 1998, she began seeing a psychiatrist. After her first visit, she got some good news: She had won her grievance and could return to her job. The insubordination charge was unwarranted, and the suspension was unjust. She also would be reimbursed for all of the pay she’d lost during the thirty-seven days she was out of work.
Although relieved to have her economic safety net restored, White found that nothing had changed when she returned to the Memphis Yard. With a sexual harassment complaint, three EEOC charges, and now a union grievance to her name, White was more of a “troublemaker” than ever.
After a little more than a month back on the job, White’s psychiatrist instructed her to take a disability leave until the summer, pronouncing her “unable to work at this time.”6 When that leave expired, the psychiatrist prescribed more time off. In a note to BNSF dated November 4, 1998, she described White as having post-traumatic stress disorder and major depressive disorder, with symptoms including depression, anxiety, flashbacks, poor memory, and inability to concentrate. “Patient remains anxious,” she wrote. “Unable to function and cope with stress.” As for an estimated date White would be able to return to work, the doctor stated, “Unknown.”7
* * *
As it turned out, by the time trial began in White v. Burlington Northern & Santa Fe Railway nearly two years later in August 2000, White still had not returned to the Memphis Yard. Her psychiatrist didn’t deem her ready to work until June 1999, but by then, BNSF had had to temporarily lay off a number of track laborers for lack of work; White didn’t have the seniority to avoid being one of them. She wasn’t fired, but she wasn’t working either.
At trial, White was represented by Don Donati, an experienced Memphis employment attorney, and his stepson Billy Ryan, who had been out of law school for just over a year. BNSF’s attorneys were also related, a father and son duo named Everett and Ralph Gibson. For a railway company second only to Union Pacific in its size and with deep pockets to match, BNSF had made an odd choice in the Gibsons. Their small firm primarily handled DUI defense, personal injury, and divorce cases, not employment litigation defense.
The judge was Jon McCalla, a former Army lieutenant who had been appointed to the bench by President George H. W. Bush. McCalla had earned some infamy in Memphis legal circles for being “erratic,”8 prompting several attorney complaints, an official investigation of his conduct, and—just a few months prior to the start of White’s trial—a rebuke from the federal appeals court for his “intemperate behavior” toward an attorney during a sentencing hearing.9 White didn’t know this history, but she didn’t like the “edge” she perceived in how McCalla talked to potential women jurors. And the composition of the jury concerned her too; all but one of them were white, there were more men than women, and most of the jurors looked to White like they wouldn’t be able to relate to her—too “corporate,” she said.
White brought three claims. The first was that Joiner’s conduct had created a hostile work environment for her. The other two claims were for retaliation. First, did White’s removal from the forklift job constitute retaliation for complaining about Joiner’s harassment? And second, was the decision to suspend her for insubordination intended as legitimate discipline, or was it intended as retaliation for filing EEOC charges?
For three days, the jury heard from nine witnesses, including White herself and the main players from BNSF: Bill Joiner, Marvin Brown, and Percy Sharkey. They confirmed that operating the forklift was an easier, cleaner, and more desirable assignment than the usual track laborer’s job. Brown also admitted that male workers had been griping about White’s assignment to such a “pud” job long before she complained about Joiner, yet it was only after she lodged that complaint that he made the transfer decision.10 He further admitted, as did Joiner, that White had done the job well and there was nothing in her performance that warranted removing her.11 When it came to the discredited charge of insubordination against White that had triggered her suspension, Brown and Sharkey couldn’t get their stories straight about who had made the decision or why.12
White’s two retaliation claims were hardly slam dunks, and not just because juries are always unpredictable. Title VII’s antiretaliation provision is bare bones, with no congressional committee testimony or other legislative history to give it shape. It merely makes it illegal to “discriminate” against someone for opposing biased treatment but doesn’t define what retaliatory “discrimination” means. In contrast, the law’s section banning employment discrimination includes all sorts of language spelling out what kinds of employer conduct are prohibited because of sex (as well as race, national origin, color, and religion). That provision explains it’s unlawful “to fail or refuse to hire” someone, to “discharge” that person, to treat the person differently “with respect to his compensation, terms, conditions, or privileges of employment,” or to “limit, segregate, or classify . . . employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”13
So it had been left up to the courts to decide what it meant to “discriminate” against someone for complaining about perceived bias. All of the courts that had considered the issue by then had established a basic test: An employee had to show that he or she had complained about perceived discrimination and that the complaint had caused the employer to take an “adverse action.” But how “adverse” was illegally adverse?
Federal judges couldn’t agree on an answer. Among the twelve federal courts of appeals, no fewer than three standards were in use. Some courts thought retaliation claims should be limited to only the most serious kinds of punishment for lodging a complaint, such as discharge or demotion. Others thought retaliation should be much easier to prove and should encompass employer actions that might seem minor but were clearly meant as retribution—say, closely monitoring an employee’s arrival and departure times or rescinding a previously granted vacation request.
In the middle was the Sixth Circuit—the circuit that included Tennessee as well as Kentucky, Michigan, and Ohio—which analyzed retaliation claims the same way it analyzed any other Title VII claims: An employee must show her complaint resulted in a “materially adverse change” in the “terms and conditions of [her] employment.” “Materially adverse” was a definition that included, as one court explained, not just actions that had economic consequences to the employee, such as firing her or cutting her pay. It also included job changes like “a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or”—and here was the catchall that White and her attorneys hoped the jury would find applied to her—“other indices that might be unique to a particular situation.”14
BNSF argued that neither the job transfer nor the suspension met the Sixth Circuit’s “materially adverse” test. Although the usual track laborer duties might have been more strenuous than operating the forklift, track laborer was the job for which White applied, interviewed, and was hired. Nor had White’s transfer resulted in a cut in her pay, loss of seniority, or any other tangible harm. She just didn’t like it as much, and that, went the argument, wasn’t “material” enough to violate the law. The same went for White’s suspension: She had been reinstated and had received all of the back pay, seniority, and other benefits that she’d lost during the thirty-seven days her grievance was pending. So she didn’t have any out-of-pocket losses, and she still had her job. While it had undeniably been stressful to be in limbo for a little over a month, that also wasn’t a “material” enough harm to qualify as illegal retaliation.
After just a few hours of deliberation, the jury had its verdict: It found in White’s favor on both retaliation claims. (For reasons that are unknown—juries aren’t required to explain their decisions—it ruled against White on her third claim, for a hostile work environment.) It awarded her legal fees, $3,250 as reimbursement for her out-of-pocket medical bills arising from her treatment for depression, and $40,000 as compensation for her overall emotional distress.
* * *
When a jury reaches a decision that a litigant doesn’t like, the unhappy party has two options: Challenge the way the trial was run—such as by arguing that certain evidence was wrongly excluded, or that the jury instructions describing the applicable legal standards were defective—or ask the trial judge to set aside the verdict. BNSF did the latter. Although Judge McCalla had conceded during an on-the-record colloquy at trial that the case was treading on new ground—“This is an area that the Sixth Circuit might end up writing something on,” he mused15—he quickly denied BNSF’s motion. White’s transfer and suspension were “material” enough to support the verdict, he found, according to the “indices” that were “unique to [her] situation”: The harsh realities of track labor made it, for all intents and purposes, a demotion, despite its paying the same wage as forklift work, while the thirty-seven-day suspension left White without income and, if not for her union’s intervention, would have become a permanent discharge.16
McCalla couldn’t have been more prescient; the Sixth Circuit did end up writing a great deal about the case. The first time was in the fall of 2002, after BNSF appealed McCalla’s decision denying a new trial. By a vote of two to one, the court ruled that the evidence did not support the verdicts in her favor. “We fail to see how White suffered an adverse employment action by being directed to do a job duty for which Burlington Northern had hired her,”17 it wrote. “Additionally, the district court’s reasoning ignores the inescapable fact that Burlington Northern ultimately reversed White’s suspension and reinstated her with full back pay and overtime.”18 When she learned that her trial victory had been nullified, White said, “I felt like I had been hit by a bomb.”19
Donati then filed the appellate equivalent of a motion for a new trial: He asked all of the Sixth Circuit’s judges to consider the case. Donati won his motion, and the case was argued before the full court in the summer of 2003. For that argument, BNSF had replaced its local legal team with a heavier hitter, the Dallas office of corporate firm Thompson & Knight.
Donati stayed put as White’s counsel, but the case had attracted some attention in high places. The EEOC filed a friend of the court brief on White’s behalf. The agency not only supported White; it also urged the court to dispense with the “materially adverse” requirement altogether and to adopt the more employee-friendly standard contained in the EEOC’s Guidelines (which three other courts of appeals also had adopted). Under that standard, an employer violated Title VII if it took punitive action against the complaining employee that—if the worker had known to expect it in advance—would likely have deterred her from complaining at all.20 The Guidelines contained an example. Suppose an employee lodged a complaint about her boss’s decision to deny her a promotion. Within days, the boss then told the complaining employee not to bother coming to the weekly lunch that everyone else in the department attended. According to the EEOC, the boss’s action likely was illegal retaliation: Because most employees would not want to be publicly shunned by their boss, they wouldn’t risk it by complaining about the lost promotion—that is, the shunning would have been “reasonably likely to deter” the worker from complaining.21 The theory was that there were many ways of punishing a worker besides firing her or cutting her pay, and Title VII should protect employees from those subtler forms of retaliation, too.
In April 2004, the Sixth Circuit’s decision came down. The thirteen judges weren’t able to agree on a single standard for “adverse action.” Eight voted to stay with the “materially adverse” standard, while five voted for the more generous one advocated by the EEOC. But the one thing that all of them could agree on was that the prior panel’s ruling should be reversed, and White’s jury verdict should be reinstated. BNSF’s decisions to remove her from the forklift and to suspend her for insubordination were illegal “adverse actions,” whatever the definition.
Because BNSF had fought White’s claims through three EEOC charges, a trial, a motion for a new trial, and two Sixth Circuit hearings, it came as no surprise to White that, after its loss, BNSF filed a petition for certiorari with the Supreme Court. (“I knew that they were going to appeal anything with my name,” said Sheila White with a sigh. “They hated my name.”)
On December 5, 2005, the answer came: cert granted.
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“It may sound odd to say that we were not surprised that the Supreme Court agreed to hear this case, but that is how we felt,” Don Donati later wrote.22 He recognized that the fissure among the federal courts on the retaliation question was just the sort of classic “circuit split” that can prompt the Supreme Court to hear one of the thousands of petitions it receives each year. A patchwork of legal standards means confusion for employers, employees, and courts alike.
The split was a problem with a relatively recent origin. One cause had been the 1991 Civil Rights Act, which expanded Title VII to allow recovery of emotional distress damages and punitive damages, in addition to reimbursement for out-of-pocket losses, such as back pay and attorneys’ fees. As courts had begun to grapple with claims like Sheila White’s—that their employers’ retaliation didn’t have economic repercussions but had caused emotional harm—they had adopted conflicting standards for assessing them.
The Supreme Court itself also was responsible, if indirectly so, for the rise in retaliation claims. In a 1997 decision, it had ruled that Title VII’s ban on retaliation protected not just current employees but former ones too. In that case, a former Shell Oil sales representative named Charles Robinson alleged that after he was downsized and filed a race discrimination charge with the EEOC, Shell interfered with his efforts to get a new job by bad-mouthing him to a prospective employer. The Court found that Title VII allowed Robinson’s claim, even though he no longer worked for Shell when it allegedly spoke ill of him. Protecting former employees from retaliation, reasoned the Court, was essential to preserving Title VII’s underlying purpose of remedying discrimination. If the price of complaining about a racially motivated firing was blackballing, undoubtedly many former employees wouldn’t want to pay it. The fired employee wouldn’t complain, and the employer would be free to keep discriminating.
The Court assured that the pool of retaliation plaintiffs only got deeper and wider when, in 1998, it issued opinions in two landmark sexual harassment cases. In those rulings, the justices finally answered the question on which they had punted in Mechelle Vinson’s case a decade earlier: Is an employer liable for a supervisor’s harassment even if it never knew about it?
The first case concerned Beth Ann Faragher, who had worked as a lifeguard at the beach in Boca Raton, Florida. In a case that The Wall Street Journal jovially described as having “shades of ‘Baywatch’ and ‘Law and Order,’”23 Faragher alleged that she had been subjected to constant harassment by her direct supervisors. The two men constantly touched her sexually, made crude appraisals of her body (“If you had tits I would do you in a minute”),24 mimed sexual acts, and made vulgar propositions. One of them warned Faragher, “Date me or clean the toilets for a year.”25
The second case was brought by Kim Ellerth. As a sales representative for textile giant Burlington Industries, Ellerth had endured a steady stream of lechery from her boss’s boss. He gave her breasts lingering stares, touched her suggestively, greeted her phone calls with sexual innuendo (“How are those legs of yours, Kim?”), and regaled her with dirty jokes about dumb blondes.26 On a business trip, the man pressured Ellerth to join him for drinks, then remarked on the size of her breasts, told her to “loosen up,” and advised, “You know, Kim, I could make your life very hard or very easy at Burlington.”
Despite arising out of vastly different workplaces, the cases were essentially the same. Each woman alleged she’d been harassed so relentlessly by a supervisor that she’d been forced to quit, but neither one had ever filed a formal complaint with her employer.
In dual opinions issued on the same day,27 the Court laid out its new rules for holding companies liable under Title VII for a supervisor’s harassment. If a harasser uses his authority to take some sort of tangible action against an employee, such as firing or demoting her, then the company is automatically liable. But if the harasser merely creates an abusive environment—as it did in Faragher’s and Ellerth’s cases (and in Mechelle Vinson’s case as well)—then the employer can defeat a lawsuit by showing that it implemented preventive measures, such as a complaint procedure, and the complaining employee didn’t use them.
The intention, said the Court, was to spur employees to report harassment so that employers could remedy it before it turned—literally—into a federal case. Because Boca Raton had no such preventive mechanisms, a lower court ruling in Faragher’s favor was allowed to stand; Ellerth’s case was sent back to the trial court for new consideration, given that Burlington Industries did have an antiharassment policy in place during the relevant time frame.
Even though most people have never heard of it, much of the working public likely has personally experienced the effects of the so-called Faragher/Ellerth defense. Nearly two decades after its creation, sexual harassment policies, “sensitivity training,” and company complaint hotlines are as much a part of many Americans’ work lives as e-mail; with such mechanisms, employers hope to insulate themselves from at least some varieties of sexual harassment lawsuits. In practice, of course, once companies adopted such measures, employees actually began using them to file harassment complaints. More complaints meant more opportunities to retaliate. So although Title VII’s retaliation provision protects employees who allege any kind of discrimination—not just discrimination “because of sex”—the Faragher and Ellerth decisions amplified the provision’s pertinence for women workers, who were the ones bringing the vast majority of sexual harassment complaints.28
In combination, all of these developments during the 1990s increased not just confusion among the courts about what constituted illegal retaliation but the sheer number of claims being filed: By the time the Supreme Court agreed to hear White’s case, roughly a third of the 75,000 charges filed annually with the EEOC alleged retaliation.29
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The Court heard oral argument in Burlington Northern & Santa Fe Railway v. White on a rainy April morning in 2006. Sheila White had traveled from Memphis to attend, along with her husband, Andrew Parrish. Nearly a decade had passed since she first interviewed for her job with BNSF; now she was disabled from the “wear and tear” of track laborer work and getting by on disability benefits. Still, White told a local reporter a few days before the argument, “It makes me feel good to know that someone out there is concerned about me and especially the decision and the law.”30 That stormy day, White savored the experience of walking up the Court’s steps and through its marble columns—as a litigant, not a tourist. “That was a great experience for me,” she marveled. “Many people don’t get a chance to do that.” To White’s astonishment, as she found her way to her seat in the packed courtroom, people in the gallery began recognizing her. Some even asked for her autograph.
After more than a decade without any changes to the Court, the lineup had undergone a dramatic shift. Chief Justice John Roberts was just a little over six months into his tenure, having replaced Justice William Rehnquist, while Justice Samuel Alito had recently taken the seat of Sandra Day O’Connor. Justice O’Connor’s retirement had left the Court with just one woman, Justice Ruth Bader Ginsburg. Between the Court’s new gender composition and the addition of two conservatives—both of whose nominations had been opposed by broad coalitions of women’s and civil rights groups—it was even harder than usual to predict how an employment discrimination case would fare.
Arguing the case for BNSF was Carter Phillips, a veteran litigator with Sidley Austin, one of the largest firms in the country. A former assistant to the solicitor general and law clerk to Chief Justice Warren Burger, Phillips was making his fiftieth appearance before the Court with Burlington Northern.
Don Donati would be arguing White’s case. Although Donati was an experienced trial lawyer by Memphis standards, his practice had not taken him anywhere close to the national stage represented by a Supreme Court argument. Consequently, soon after the grant of certiorari, he had enlisted the assistance of Eric Schnapper, one of the nation’s most prominent Supreme Court advocates. Schnapper, who had spent twenty-five years at the NAACP Legal Defense and Education Fund before becoming a law professor at the University of Washington, had twelve arguments and eighty briefs to his name, mainly in the employment law arena.31 Schnapper assumed primary responsibility for drafting the arguments in the briefs while Donati prepared himself for a grilling by the nine justices.32 He participated in two moot courts—one comprising counsel from some of the forty-odd women’s rights and related groups that had submitted amicus briefs in White’s favor and another through Georgetown Law School’s esteemed Supreme Court Institute.33
From the outset of Carter Phillips’s argument, his message to the justices was clear: Consider the “real-life” implications of your decision. In the second sentence of his opening argument, he reminded the Court that “the number of these claims has increased by more than 100 percent over the course of the last decade, more than 30 percent of the EEOC’s docket is now made up of retaliation claims, and the cost of an average contested retaliation claim exceeds $130,000 per case.” The only way to avoid increasing the number of claims by “another 100 percent” was to adhere to the “materially adverse” standard.34 Moreover, argued Phillips, the Court should find, as the Sixth Circuit did when it first considered Sheila White’s case, that BNSF’s actions toward her were not “material” enough to meet that test.35
The problem for Phillips was that most of the justices seemed to understand just how easy it is for an employer to make its employees’ daily lives difficult. Justice Breyer was the first out of the gate. “Congress is worried that people won’t complain,” he said. “And there are millions ways of harassing people. . . . You do all kinds of things. You freeze them out. You insult them.” A few minutes later he observed, “[T]here are many possible ways of seriously injuring a person . . . to stop them from complaining.”36 Justice Ginsburg posed the hypothetical of a supervisor who punishes a female employee who’s lodged a complaint by changing her work hours, knowing that doing so will disrupt her child care schedule.37 And Justice Scalia noted that being without a salary for just two weeks, let alone the thirty-seven days that White was, could be “for some people, a real hardship,” even if the pay subsequently was restored.38
Whenever Phillips tried vainly to focus on the ultimate “economic effect” of an employer’s alleged retaliation—such as pointing out that White’s transfer from forklift to track labor had none—Justice Kennedy chimed in, “Well, it has an effect on your back.”39 Justice Souter spoke up. “[I]f your argument is sound, Mr. Phillips, then . . . any employer is well advised to define job categories by having one really nice job within the category and one really rotten job within the category,” he said. So long as both jobs paid the same, Souter argued, punishing an employee by transferring her to the one really rotten job wouldn’t be illegal. “I mean, that would seem to me . . . an end run around the whole concept of retaliation,” he observed.40
Soon it was Don Donati’s turn. With his earnest, almost folksy demeanor, Donati presented a stark contrast to Phillips (who was so self-assured that he corrected Justice Scalia when he mistakenly referred to the “severe or persuasive” test for harassment rather than “severe or pervasive”). Donati was prone to complimenting the justices for asking a “great question,”41 or a “legitimate question,”42 or for being “exactly correct.”43 And he struggled throughout his argument to articulate a clear demarcation between illegal retaliation and merely trivial slights, such as where—in a hypothetical posed by Justice Scalia—a supervisor accused of discrimination is “not as friendly” anymore to the subordinate who lodged the complaint. “[R]etaliation is only as varied as the human imagination,” said Donati. “Yes, I worry about that,” parried Scalia. “Juries can have wonderful imaginations.”44
But Donati savvily focused the justices—just as Phillips had—on the “real-life” effects of the Court’s ruling in the case. As Schnapper had tutored him in advance of the argument,45 Donati explained how the rulings in Faragher and Ellerth were playing out in employees’ everyday lives. Within his first moments at the lectern, he said, “You have a . . . woman here who did exactly what this Court asked her to do in Ellerth,” he said. “She complained internally about sexual harassment. . . . Because she complained about sexual harassment, . . . she was removed from the forklift.”46 Twenty-five minutes later, he closed with a similar message. Faragher and Ellerth told employees to use their employers’ complaint procedures rather than go straight to court with their sexual harassment claims; if you force employees to complain, then fail to protect them if and when their employer punishes them, they’ll eventually stop speaking up altogether.47
White and Donati left the courthouse together and arrived at a bank of microphones at the base of the steps. It was still raining, recalled White, and “I was drenched, but never mind—this was my day. I felt good. I felt relieved. I felt vindicated.”48 She also felt optimistic. “I felt that they were leaning our way,” she said. What she hadn’t expected, though, was the wide variation in demeanor among the justices. As she summarized it, there had been “one talker and one napper” hearing her case that day. (The first was Justice Scalia. The second was Justice Thomas.)
* * *
“Sheila! We won! We won!” Sheila White was still waking up as she struggled to take in the news from Don Donati, calling her from his office. “Didn’t you hear me? You need to be jumping up hollering!” What White felt, though, was peaceful. “This was one time in my life that I felt joy and relief from all the tension that had built up,” she later wrote.49
It was a unanimous victory. The jury verdict for White would stand. Better yet, the Court had rejected the “materially adverse” standard for future cases. Instead, it adopted the standard contained in the EEOC Guidelines. From now on, an employee seeking to prove retaliation need only show that the employer took adverse action that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”50 And the Court, in an opinion authored by Justice Breyer, emphasized that that would vary depending on the particular workplace. “We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.”
Here Breyer addressed some of the examples raised during oral argument. “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children,” he wrote. Referencing the example in the Guidelines, he continued, “A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”
The Court rejected the idea that an employee didn’t have a retaliation claim unless and until she was demoted, or fired, or otherwise tangibly harmed. It recognized, instead, that employers can, when they put their minds to it, exact virtually limitless forms of punishment.
* * *
It took several months for White to absorb just how significant the Court’s ruling was. Part of the problem was that, for her, the case wasn’t actually over: Up next was a trial on the issue of punitive damages, which had been ordered by the Sixth Circuit but put on hold during the Supreme Court phase of the case. Before that could happen, BNSF approached Donati with a settlement offer. White didn’t feel it fairly compensated her, but she knew the risk that a jury might see the facts differently and award her even less. Rather than take her chances, she decided to accept the offer and move on.
With time, she was able to appreciate what she’d accomplished. “I came to realize that this action would have far-reaching results that would overshadow my own difficulties,” she later wrote. “I was thrilled that the Court’s decision would touch so many people.”51 White is often a featured speaker before groups of lawyers, unions, and other advocates around the country, a role she revels in. Nearly a decade after the ruling, audience members still tell her how far her case went in making employees feel a bit safer speaking up.
“This decision vindicated me,” she said. “No one can take away this sense of accomplishment and feeling of satisfaction.”52