E.J. Graff does a very good job explaining Burlington Northern v. White, a case currently before the Supreme Court that will basically decide how much protection to afford whistleblowers who speak out against workplace discrimination. Here’s the basic dilemma:
Different appeals courts have come to different conclusions on how you define retaliation. The Sixth Circuit declared that “materially adverse” was the standard, and that what happened to White [i.e., transferred to a different job and being suspended for 37 days without pay for speaking out against gender discrimination] counted under that standard.
Other circuits have said that it’s only retaliation if it involves an “ultimate employment decision” like failing to hire, failing to promote, or firing. Still others stand with the little gal: Any action that is “reasonably likely to deter” you from reporting discrimination — say, a “lateral transfer” — counts as retaliation, and you can sue.
Judging from the oral arguments, Graff reports, the Supreme Court will probably rule with White and set somewhat broad standards on what employers aren’t allowed to do to retaliate. Interestingly enough, Scalia will probably rule against the employers, while Roberts and Alito will likely side with the company—more evidence for the idea that the White House ultimately nominated the people it did primarily with business interests in mind.