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Several U.S. Supreme Court justices expressed sympathy Monday for a railroad yard worker who was transferred to a harder job and then suspended without pay during the Christmas holiday after she accused her supervisor of sexually harassing her. Justice Antonin Scalia joined Justice Ruth Bader Ginsburg in recognizing the hardship the 37-day suspension caused Sheila White as the Memphis, Tenn., forklift operator worried about how she would feed her children or buy holiday presents for them. But the conservative trio of Scalia, Chief Justice John Roberts and Justice Samuel Alito also voiced concern about whether Congress intended to shield workers who file sex or race discrimination claims from any changes in their jobs. The justices are being asked to set the legal standard for evaluating the seriousness of changes in employment made by supervisors who may be angry over a worker’s discrimination complaint. Attorney Donald Donati, who represents White, warned the high court to avoid setting hard and fast definitions of what is or isn’t retaliation because he said he fears employers will use such standards to intimidate workers into remaining silent about discrimination. “Retaliation is as varied as the human imagination,” Donati said. “I worry about that,” Scalia said. “Jurors can have wonderful imaginations.” Scalia said he is concerned jurors could find in favor of workers and award damages for “every little thing.” What, he asked, would stop a jury from awarding damages if an angry supervisor stopped saying “Good Morning” or taking to lunch an employee who alleged discrimination. Of the conservative justices, Scalia appeared to be trying to find a way to rule in White’s favor while protecting employers from what is already an explosion in the number of retaliation complaints filed by workers. Attorney Carter Phillips, who represents the Burlington Northern Santa Fe Railway, conceded that a jury would be able to consider a case where a supervisor excluded an employee who complained of discrimination from a weekly lunch that all other workers attended. But Phillips warned justices that a decision favoring workers likely will make matters worse for businesses. He said retaliation claims more than doubled in the past decade, comprise more than 30 percent of the Equal Employment Opportunity Commission’s caseload and cost more than $130,000 each to resolve. A decision by the Court could affect the balance of power in government and private workplaces nationwide. The railroad company wants justices to overturn a decision by the Cincinnati-based 6th U.S. Circuit Court of Appeals that found that suspending White 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. White, the only woman working at the railroad yard, 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. 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. The railroad eventually rescinded its decision to suspend White — clearing her of insubordination charges — and compensated her for back pay. A jury hearing her lawsuit rejected the sex discrimination charge but found in her favor on the retaliation claim, awarding her $43,000. The case is Burlington Northern Santa Fe Railway v. White, 05-259. Copyright 2006 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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