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Court Hears Discrimination Case

E.J. Graff does a very good job explaining Burlington Northern v. White, a case currently before the Supreme Court that will basically decide how much protection to afford whistleblowers who speak out against workplace discrimination. Here's the basic dilemma:

Different appeals courts have come to different conclusions on how you define retaliation. The Sixth Circuit declared that “materially adverse” was the standard, and that what happened to White [i.e., transferred to a different job and being suspended for 37 days without pay for speaking out against gender discrimination] counted under that standard.

Other circuits have said that it’s only retaliation if it involves an “ultimate employment decision” like failing to hire, failing to promote, or firing. Still others stand with the little gal: Any action that is “reasonably likely to deter” you from reporting discrimination -- say, a “lateral transfer” -- counts as retaliation, and you can sue.

Judging from the oral arguments, Graff reports, the Supreme Court will probably rule with White and set somewhat broad standards on what employers aren't allowed to do to retaliate. Interestingly enough, Scalia will probably rule against the employers, while Roberts and Alito will likely side with the company—more evidence for the idea that the White House ultimately nominated the people it did primarily with business interests in mind.

Posted by Bradford Plumer on 04/28/06 at 11:23 AM | E-mail | Print



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The Supreme Court doesn't need to hear this case!
Plaintiff White complained about specific incidents of alleged sexual harassment, such she was reassigned from her forklift position to a standard track laborer position, but the 1964 Civil Rights Act EXPLICITLY prohibits such retaliation; Sect. 704 of Title VII states that it is illegal for an employer to retaliate against anyone for bringing a discrimination charge.
And the US Supreme Court in Burlington Industries v. Ellerth stated that"[a] tangible employment action constitutes ... reassignment with significantly different responsibilities ..."
Funny?, how Burlington No. asserted one reason for transferring White in its interrogatory response, but then Brown, the official who made the decision to transfer White, asserted a different, contradictory reason at trial. Brown testified that he transferred White in part based upon complaints from Ellis (a co-worker), but at trial Ellis denied complaining about White. Brown testified that Sharkey made the decision to suspend White, while Sharkey testified that Brown made the decision. Burlington No. asserts that Brown suspended White for insubordination, but another Buekington No. official who served as a hearing officer for White's internal grievance concluded that White had not been insubordinate.
Yeah, instead of the Supreme court wasting its precious time, what's called for here is a grand jury investigation for perjury, ect.
And the Justices of the Supreme Court should be seen here as accessorities after the fact because Misprision of Felony (Title 18, Sect. 4) states that persons in position of civil authority, ect., must act appropriately upon knowledge of felony...

Posted by: Michael L. Wagner on 04/28/06 at 7:55 PM

So..., what's with the Supreme Court...???
An anatomy of GROSS deprivations of civil liberties...--in O'Shea v. Littleton (1974) 17 African-Americans challenged two state judges who engaged in a pattern of racially motivated illegal conduct.
The dissenting opinion explained how, "This Court now decides for the first time in the course of this litigation that the complaint is deficient because it does not state a 'case or controversy' ... These allegations of past and continuing wrongdoings clearly state a case or controversy."
Huh???, what in Hell is the story here...???
"We know that Cairo (IL) is boiling with racial conflicts. This class action is to remedy vast invasions of civil rights. The Court, however, says that it is not a 'case or controversy' because none of the named plaintiffs has alleged infringement of his rights and the fact that OTHER MEMBERS OF THE CLASS may have been injured is not enough. The upshot is that one crucial issue on which this Court makes this case turn has not been decided by the Court and was never argued here."
In fact, the Court's holding was not only nonsense but actually prohibited, "since the first objective is conclusive, there is an end to the matter."
In O'Shea the Court went on to further annihilate the Constitution, "Past exposure to illegal conduct does not in itself show a present case or controversy, if unaccompanied by any continuing, present adverse effects."
The utter stupidity of this holding is plainly demonstrated in a later suit, where the plaintiff protested the Forest Service's use of unconstitutional checkpoints targeted at her group, "The Forest Service does not deny that the checkpoints were impermissibly operated, but argues that Ms. Parks has not made an adequate showing that she will be subjected to unconstitutional checkpoints in the future. We agree. The MERE FACT that the checkpoint was used at the 1996 gathering was unconstitutional cannot alone give Ms. Parks standing. We do not think that the use of checkpoints in 1997, 1998, and 1999 is relevant ..."
Wow!!! What Constitution????And, so..., where's SUPERMAN, I mean the ACLU.. In bed with who!!!??? Certainly not with Plaintiff White, that's for damn sure!!!!!!!!!!!!!

Posted by: Michael L. Wagner on 04/29/06 at 11:52 AM

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