March is Women’s History Month, and I want to tell the story of a courageous female forklift operator who pursued justice all the way to the Supreme Court last year. What do forklifts, women and civil rights have in common? Read on…

First, the law. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based upon “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). This statute also has an anti-retaliation provision that also forbids discrimination against an employee or job applicant who has made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a).

It is oftentimes easier to prove a retaliation claim than it is to prove the underlying discrimination claim, since the merits of a retaliation claim exist independently from whether or not the claimant has a bona fide discrimination claim.

A claimant may still prevail in their suit if the court finds that they had been discriminated against for asserting a discrimination claim, even if the discrimination claim is found deficient.

Retaliation claims are thus potent weapons to ensure that employees may assert their civil rights without fear of reprisal by their employer.

Several months ago, retaliation claims become even more potent.

In Burlington Northern & Santa Fe Railway Co., v. Sheila White, 126 S. Ct. 2405 (2006), the U.S. Supreme Court broadly expanded the scope of what constitutes employer retaliatory conduct actionable under Title VII.

Sheila White, the only female forklift operator in the railroad’s Burlington Tennessee Yard, was subjected to repeated harassment by her supervisor, Bill Joiner, who had repeatedly told her that a woman should not be working as a track laborer. Joiner made insulting and inappropriate remarks to White in front of other male employees. As a result, White complained about this conduct and as a result of the complaint, Joiner was suspended for ten days and required to attend a sexual harassment workshop. Inexplicably, White was also reassigned from forklift operator duties. Management claimed that a more senior man should have the “less arduous and cleaner job” of forklift operator.

Subsequent to her reassignment, White filed a claim with the EEOC, alleging that her reassignment constituted unlawful employment discrimination as well as retaliatory conduct for her having complained about Joiner’s harassment. After she filed the EEOC charge, she was compelled to file a second retaliation charge because the railroad had allegedly placed her under surveillance and was monitoring her daily activities. She filed yet a third EEOC charge after she had been improperly suspended for engaging in insubordinate conduct.

As a result of this suit, the Supreme Court determined that the scope of adverse employment action that was required to be proven to set forth a Title VII retaliation claim was extremely broad and extended to any type of conduct that would tend to dissuade a reasonable employee from making or pursuing a discrimination charge.

Hence, retaliatory conduct may include conduct which has no economic impact upon an employee, such as a change of schedule or work assignment.

Under this broad standard, it might even extend to off-premises conduct.

If it could be proven that an employer had engaged in retaliatory conduct as a result of an employee asserting her or his rights under Title VII, a retaliation claim might exist.

This decision is a tremendous victory to plaintiffs’ employment lawyers such as myself since it greatly expands a litigant’s ability to prove a retaliation claim.

What is even more remarkable than the decision itself is the fact that it was the result of a very tenacious woman’s decision to pursue a civil rights claim all the way to the Supreme Court even though she would not receive any financial benefit if she were successful.

The only result a successful suit would have would be to return her to her previous forklift operator position.

One can see that her sole motivation was to rectify a situation she plainly saw was unfair.

If White was qualified to operate a forklift, which clearly she was, gender should not be a barrier to her doing so.

I applaud this woman’s heroic decision to effectuate a change in the law.

Harvey Mars is one of Local 802’s legal counsel. Legal questions are welcome from 802 members. E-mail them to jurmars566@aol.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.