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).