[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday heard oral arguments in Burlington Northern & Santa Fe Railroad v. White [Duke Law case backgrounder; merit briefs], a case in which it will decide which of the three tests adopted by US courts of appeal should determine employer liability for a retaliation claim under Title VII of the 1964 Civil Rights Act [text; EEOC backgrounder]. Specifically, the Court will decide between the Sixth Circuit's test, applied in the present case [6th Circ. ruling, PDF], under which any "materially adverse change in the terms of employment" subsequent to a discrimination complaint establishes liability, the Ninth Circuit's test that adverse treatment "reasonably likely to deter" the employee from participating in a protected activity establishes liability, or the test from the Fifth and Eight Circuits prohibiting only an "ultimate employment decision."

After filing a sexual harassment complaint against her foreman Sheila White, a forklift operator at Burlington Northern [corporate website] was suspended for 37 days without pay for insubordination; an investigation later resulted in a reversal of the suspension and reinstatement of back pay. Following the reversal, White filed a harassment and retaliation claim with the US Equal Employment Opportunity Commission [official website], and a jury awarded her $43,000 for the retaliation claim. During oral arguments the more conservative members of the bench, including Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito [Oyez profiles], expressed concern over the appropriate gauge for employer action, with Scalia worrying aloud whether an employer's refusal to say "good morning" could result in litigation. Justice Ruth Bader Ginsburg [Oyez profile], however, stated that White's suffering expanded beyond her temporary suspension to include financial and emotional strain on her family. AP has more.