From the National Women’s Law Center: “A Sobering Lesson from Burlington Northern: the Power of the Lower Courts”

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Here’s an excerpt:

Although we are pleased with the Supreme Court’s decision in Burlington Northern v. White, the decision is also a harsh reminder of the power of the lower courts, and the irrevocable damage they can cause before the Supreme Court straightens them out on the correct legal standard – when it does.

In Burlington Northern, the Supreme Court held that an employee can win if she shows that in retaliation for her complaint of discrimination, her employer took some action against her that might deter a reasonable employee from complaining of discrimination. The employer’s action doesn’t have to be as extreme as firing her. For example, the Court said depending on the circumstances, it could be a schedule change that would matter enormously to a young mother with school age children. But before the Supreme Court ruled, two Courts of Appeals (the Fifth and the Eighth Circuits) applied a more restrictive standard. They held that an employee could bring a successful retaliation claim only if, after complaining of discrimination, the employee suffered an”ultimate employment action,”such as firing or a change in pay. In the states where that standard has been applied, countless employees who have suffered retaliation by their employers have been left without a remedy. In fact, Sheila White’s brief in the Supreme Court has an appendix of about 40 cases in which sexual harassment victims complained and were retaliated against, but received no relief under the”ultimate employment action”standard, and there are undoubtedly many more victims as well. …

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