Depends on what you mean by "adverse"

Rod Satterwhite — Wed, 07 Dec 2005 04:12:00 GMT

The Supreme Court yesterday granted certiorari to apparently end the debate over what constitutes adverse employment action in a retaliation case.

In a case coming out of the Sixth Circuit, a female forklift operator got reassigned to a more physically demanding job after she made a sexual harassment complaint. The Sixth Circuit, sitting en banc, agreed with the employee that the action was adverse. The only catch was that they couldn't agree on what standard to apply to reach their decision.

The employers in this case argue that there's basically a three way split. The Ninth Circuit and EEOC see adverse employment action as anything "reasonably likely to deter" protected activity (e.g., "he looked at me funny"). The Fifth and Eighth Circuits, ever the bastions of conservatism, look for a definitive or ultimate employment action, such as a termination. At least four circuits use the "materially adverse change in the terms of employment" test.

It will be interesting to see how narrowly the Court will choose to interpret the definition, and what the corresponding effect on employers will be. We'll keep you posted when the decision comes out.

White v. Burlington Northern, 364 F.3d 789 (6th Cir. 2004), cert. granted 2005 U.S. LEXIS 9047 (U.S. Dec. 5, 2005)(No. 05-259).

Justice Roberts Jumps in with Both Feet

Rod Satterwhite — Thu, 06 Oct 2005 13:38:00 GMT

Newly sworn in Chief Justice John Roberts heard his first arguments this week, including a case dealing with the FLSA. There is currently a circuit split over whether or not the time spent donning and doffing protective gear is compensable under the FLSA. The 1st Circuit, in Tum v. Barber Foods, 360 F.3d 274 (2004), held that it was not, but the 9th Circuit, in Alvarez v. IBP Inc., 339 F.3d 894 (2003), held that it was. The question hinges in part on whether the activity at issue is "integral and indispensable" to the actual work involved, under the US Supreme Court holding in Steiner v. Mitchell, 350 US 247 (1956). The Chief Justice questioned counsel on the issue's interplay with existing regulations on the compensability of walking between workstations and waiting in lines, as well as the relationship between "integral and indispensable" activities and "primary activities" cited as compensable in federal regulations. Nothing like a little heated debate for your first day on the job.

Suits In The WorkPlace : Supreme Court

Depends on what you mean by "adverse"

Justice Roberts Jumps in with Both Feet