In June 2006, we told you about a Supreme Court decision in a case called Burlington Northern v. White that protects employees against retaliation for complaining about discrimination. We also told you about the many employees who did not receive any relief in court under earlier cases that applied a harsher standard for determining whether the adverse action taken by an employer was bad enough to be considered retaliation under the law. Recently, the Supreme Court looked at one of those cases and sent it back to the Court of Appeals to be reconsidered in light of its decision in Burlington Northern. This action reminds us of the many employees who lost their cases too long ago to be able to ask the Supreme Court to review their plight, and of the significance of the decisions of the Courts of Appeals.
Ironically, the employer in the case the Supreme Court sent back to the lower court is the Equal Employment Opportunity Commission (EEOC) – the federal agency that enforces Title VII, the federal law that bars employment discrimination. The plaintiff in the case is Davidson Momah, who is black. After working in the EEOC’s Detroit office for several years, Momah, a lawyer, was selected for a better position in the Memphis office. But, after Momah had to be hospitalized after being assaulted by a white supremacist, his wife did not want to move to Memphis. Momah’s request for a transfer back to Detroit was denied. Then Momah’s daughter was diagnosed with scoliosis, and needed treatment by specialists in Detroit and Chicago. He again requested a hardship transfer, but was denied on the ground that the EEOC did not need more staff in Detroit. But, Momah learned that several whites had been granted hardship transfers to Detroit, and filed a complaint with the agency. He later filed suit, complaining about both discrimination and retaliation against him for filing with the EEOC. The Sixth Circuit Court of Appeals affirmed the district court’s judgment in favor of the agency. On the retaliation, claim, it found, among other things, that the denial of his request to transfer could not be the basis for recovery, because he had not been demoted or suffered a reduction in pay. But, Burlington Northern requires a court to look at the full context of an employer’s action and its real impact on the employee – not just on the effect on his or her pay. Now the Sixth Circuit will have to go back and take a much harder look at Momah’s experience with an awareness of the many forms that retaliation can take and that the law at last recognizes.
