updated 4/17/2006 5:39:55 AM ET 2006-04-17T09:39:55

U.S. businesses are confronting a new dilemma: how to maintain control in the workplace after an employee complains of sex or race discrimination without drawing a more damning charge of retaliation.

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Retaliation claims have risen dramatically, and the Supreme Court considers Monday what legal standard should be used to evaluate the seriousness of changes in employment made by supervisors who may be angry over an employee’s discrimination complaint.

A decision by the court could affect the balance of power in government and private workplaces nationwide.

The Burlington Northern Santa Fe Railway Co. wants justices to overturn a decision by the Cincinnati-based 6th Circuit U.S. Court of Appeals that found that suspending a female forklift operator for 37 days without pay and transferring her to a more physically demanding job were “materially adverse” changes in her employment.

Businesses warn they will be hamstrung if justices side with workers and create a “superprotected class” of employees who can’t be disciplined or transferred once they file a discrimination complaint.

More lawsuits?
Lawyers for the railroad predicted that a ruling in favor of forklift operator Sheila White could lead to more lawsuits.

From 1992 to 2004, they said, employees filed nearly twice as many complaints with the government alleging retaliation by employers, making it the fastest-growing category of complaints in job discrimination-related cases.

Labor unions and women’s groups disagree. In friend-of-the-court filings, the groups said businesses must not be allowed to use seemingly innocuous schedule changes or transfers to send not-so-subtle messages to pressure workers “to remain silent rather than rock the boat.”

White, the only woman working at a railroad yard in Memphis, Tenn., complained that her foreman was sexually harassing her and that other workers disparaged her by saying a rail yard was no place for a woman.

Tranferred to more demanding job
A company investigation led to the foreman’s suspension and enrollment in sensitivity classes. But the railroad also transferred White to work as a regular track worker, a more physically difficult job than operating a forklift.

After she filed a complaint with the Equal Employment Opportunity Commission, White was suspended without pay for 37 days around the Christmas holidays in 1997. The railroad eventually rescinded its decision — clearing her of insubordination charges — and compensated her for back pay.

A jury hearing her lawsuit rejected the discrimination charge but found in her favor on the retaliation claim, awarding her $43,000.

“What happened to (White) in this case is emblematic of a continuing widespread problem of sex discrimination against women, particularly in nontraditional settings, and of the nearly limitless methods some employers use to punish and deter employees from seeking to enforce their ... rights,” The National Women’s Law Center said in a court filing.

But the Equal Employment Advisory Council, a nationwide association of employers, said in a filing that businesses must keep order in workplaces, often by suspending disruptive workers.

If White wins, the council said, employers will face “a Hobson’s choice” of allowing disruptions in the workplace or suspending workers pending investigations at the risk of a lawsuit for retaliation.

The case is Burlington Northern Santa Fe Railway v. White, 05-259.

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