Burlington Northern Santa Fe Railway v. White

In a recent case argued before the United States Supreme Court, Burlington Northern Santa Fe Railway v. White, the issue of what constitutes a material adverse employment change was debated.

Justice Antonin Scalia was concerned that a jury may be able to award an employee damages for “every little thing” instead of the requirement of a material adverse change. Justice Scalia continued that an angry supervisor who stops saying “good morning” or taking to lunch an employee who alleged discrimination may give rise to an adverse employment change, thus subjecting the employer to liability.

In the Burlington Northern case, the railroad is seeking the United States Supreme Court to overturn a decision by the 6th Circuit Court of Appeals which found that suspending an employee for 37 days without pay and transferring her to a more physically demanding job was a material adverse change in her employment.

Businesses warn that the Court should not create a super protected class of employees who cannot be disciplined or transferred once they file a discrimination complaint. The employee alleges that any change in her employment duties, compensation, title or tasks would give rise to a material adverse employment change, thus holding the Company liable under retaliation-based claims.

The Burlington Northern decision is expected to be published in late 2006. With the recent conservatism of the Court, it is likely that the decision will permit an employer to escape liability and discipline an employee as long as the employer is exercising good faith and has a legitimate business purpose in the discipline.

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