Burlington Northern & Santa Fe Railway Co. v. White - Oral Argument - April 17, 2006

Burlington Northern & Santa Fe Railway Co. v. White

Media for Burlington Northern & Santa Fe Railway Co. v. White

Audio Transcription for Opinion Announcement - June 22, 2006 in Burlington Northern & Santa Fe Railway Co. v. White

Audio Transcription for Oral Argument - April 17, 2006 in Burlington Northern & Santa Fe Railway Co. v. White

John G. Roberts, Jr.:

We'll hear argument next in Burlington Northern and Santa Fe Railway Company v. White.

Mr. Phillips.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court--

There is no more vexing set of issues in the employment discrimination context than arise out of issues of retaliation under section 704 of title VII.

As the Solicitor General's brief and a couple of the other amici briefs point out, the number of... the number of these claims has increased by more than 100 percent over the course of the last decade, more than 30 percent of the EEOC's docket is now made up of retaliation claims, and the cost of an average contested retaliation claim exceeds $130,000 per case.

Plainly, this is a fundamentally important question, and the standard to be applied under section 704 is critically important to both employers and employees.

And the respondent has given you truly a choice and not a shadow in this particular case because the respondent's analysis of section 704, based essentially on the language, any discrimination, is that everything that is in any sense against an employee, any act of retaliation, no matter how trivial, is nevertheless a basis for a section 704 lawsuit.

This is a position that's embraced by none of her supporting amici.

It's a position that's been embraced by no court of appeals up until this point, and it is a position that is utterly untethered in the relationship between section 704 and its language and section 703, which is the heart and soul of the antidiscrimination norms in title VII.

John G. Roberts, Jr.:

It has been endorsed by the EEOC, though.

Carter G. Phillips:

Not... not that broad... no, not even the EEOC in its most aggressive interpretation, which obviously the United States has rejected in this case, ever went to the point of saying any.

And I'll give you a good illustration of that because in the guidelines, the commission always said that in a situation where there was absolutely no question of retaliation, charge filed against a supervisor, supervisor disinvites an employee to lunch, a lunch that's held with all the other employees... it has always been the position of the... of the EEOC that in that circumstance, that would not be enough to raise even a fact issue to go to a jury on.

Under the respondent's theory of this case, it is clear to me that being disinvited to a lunch would, in fact, be a basis for a Federal lawsuit under section 704.

So there is no one, neither governmental nor nongovernmental, that has embraced the extreme position that the respondent has put forward under section 704.

And indeed, it's very difficult for me to understand why Congress would ever have adopted a rule that was more protective of those against whom... against... where retaliation takes place as opposed to the core of who was protected by section 703, which is the people who are in the protected class in the first instance.

To adopt the rule, I think, of the respondent in this case would not only increase the number of claims another 100 percent, at least, in the future, but it seems to me would render completely meaningless the observation of this Court in Weber that management prerogatives are to be left undisturbed to the greatest extent possible.

There are no management prerogatives once an employee has filed a complaint under... and, therefore, is protected under section 704.

At that point, everything becomes essentially a straitjacket problem.

I don't think there's a rationale to support that interpretation, and so therefore the question is, what is the right standard under section 704?

And here, it seems to me the United States and Burlington Northern are on exactly the same page.

We believe that this Court announced the appropriate standard under section 703 in dealing with harassment cases.

That's the Ellerth standard, and we believe that the Ellerth standard is the proper one for defining a tangible employment action.

Antonin Scalia:

But 703 has the language and 704 doesn't.

I mean, 703 has language limiting it to... to employment, prerogatives of employment.

704 doesn't.

Carter G. Phillips:


Justice Scalia, this Court has also said that that negative pregnant has never been used as an overarching interpretive guide.

You have to evaluate 703 and 704 in tandem, and it seems much easier to interpret 704 as simply using discrimination against as a shorthand for the wide range of discriminations that are outlined in 703.

It seems quite cumbersome, at a minimum, and probably worse if Congress were to actually sit down and try to rewrite every aspect of 703 in order simply to say in addition to the protected classes that 703 protects, there is certain conduct under 704 that we protect in exactly the same way that we protect--

Antonin Scalia: