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Saturday, April 14, 2018

How One Brave Female Railroad Worker’s Complaint about Retaliation Resulted in Broader Coverage for Retaliation Claims in NJ and Elsewhere

In New Jersey and some other jurisdictions, there is broader coverage for employees’ retaliation claims against employers thanks to one brave female railroad worker who stood up for her rights against her employer, a railroad company.

This is a story of how one brave blue-collar female railroad worker's claim changed the landscape of retaliation law. It is a story that does not get told enough. In it, is the account of how one female who complained about sex discrimination by her supervisor, and then was subsequently retaliated against by her employer, a railroad company, had her retaliation claim eventually reach the United States Supreme Court. In this matter, Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, the United States Supreme Court issued a ruling that changed the standard for retaliation claims against employers, making it easier for employees to prevail in retaliation claims.

This case arose out of actions that supervisors at the railroad company, Burlington Northern & Santa Fe Ry., “Burlington”, took against a female employee after she complained about harassment. This female blue-collar worker was the only woman working in the Maintenance of Way department at Burlington's Tennessee Yard. In June 1997, the railroad's roadmaster, interviewed her for a position.  She told him that she had previous experience working forklifts. The roadmaster expressed interest in her previous experience operating forklifts. Burlington hired her as a "track laborer," a physically dirty and grueling job. It involved removing and replacing railroad track components, transporting track material, cutting brush around the rails, and picking up litter and cargo spillage from the railroad right-of-way. Real nitty-gritty physical work.

Soon after she began her employment, a co-worker who had previously operated the forklift chose to assume other responsibilities. The roadmaster immediately assigned the female track laborer to operate the forklift. Although she continued to perform some of the other standard track laborer tasks, her primary responsibility became operating the forklift. 

In September 1997, she complained to Burlington officials that her immediate supervisor had repeatedly harassed her and had told her that women should not be working in the Maintenance of Way department. She also alleged that this same supervisor had made disparaging and inappropriate remarks to her in front of her male co-workers. Burlington did an internal investigation and suspended the supervisor for 10 days and ordered him to attend a sexual-harassment training session.

Later in September, the Burlington's roadmaster who had hired her, told her about the supervisor's suspension and requirement that he take sexual-harassment training. But the roadmaster then told White that he was assigning her back to perform only standard track laborer tasks and removing her from forklift duty. He told her that co-workers complained that, a more senior man should have the less arduous and cleaner job of forklift operator.

Both the forklift duty and the standard track laborer tasks were within her job description, each which she had a duty to fulfill when she was assigned to it by her employer, the railroad. However, the tasks of a standard track laborer, to which she was assigned after she complained about sexual harassment, were more physically arduous and dirtier than operating a forklift. She then filed a complaint, alleging that the reassignment from forklift operator to standard track laborer tasks, was unlawful gender discrimination and retaliation for her prior discrimination complaint. A different supervisor then got involved in a dispute with her. Her employer accused her of insubordination resulting in her being suspended without pay.

The employer later determined she had not been insubordinate. The railroad awarded her backpay and reinstated her. The female worker, after exhausting her administrative remedies, filed against the railroad in the United States District Court for the Western District of Tennessee. She sued her employer, alleging retaliation in violation of 42 U.S.C.S. § 2000e-3 of Title VII of the Civil Rights Act of 1964. The employee alleged that the railroad’s changing of her job responsibilities from a forklift operator to a standard track laborer tasks and suspending her, had been unlawful employer retaliation under Title VII.

A District Court jury found in favor of the worker. The United States Court of Appeals for the Sixth Circuit affirmed the District Court judgment in the worker's favor. Certiorari was granted by the US Supreme Court because of the various standards in different courts of what level of adversity was necessary to bring a retaliation claim. The issue before the Supreme Court was how to resolve the disagreement over the proper standard to apply.

In Burlington Northern & Santa Fe Ry. v. White, the US Supreme Court stated that the goals of anti-retaliation law were different than the goals of underlying employment discrimination law. Accordingly, retaliation claims should not require an ultimate employment decision, a demotion with loss of pay, termination etc., for the act to be considered sufficiently "adverse" to prevail in a retaliation claim. In Burlington, the US Supreme Court issued a holding that made it easier for employees to prevail in retaliation claims, thanks to the one brave blue-collar female railroad worker who saw her case through to the end. More will be written about this seminal case and brave female whose standing up for her rights, resulted in changing the landscape of retaliation law.

What You Can Do

I am an experienced and passionate employment attorney who accepts cases from all over the state. I will be aggressive about enforcing your rights and finding redress for you. 

 Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today a for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout southern and northern New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.



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