NY Times Spins Lawyer-Friendly Ruling as 'Employee-Friendly'

     Leave it to The New York Times to describe a Supreme Court ruling that will impose numerous costs on small businesses as “employee-friendly.”

     In a June 23 article, Times reporter Linda Greenhouse praised a unanimous Supreme Court ruling that “substantially enhanced legal protection against retaliation for employees who complain about discrimination of harassment on the job.” By doing so, the Times’ court correspondent glossed over the potential problems and costs it will create for businesses.

     When an employee files a discrimination claim under Title VII of the Civil Rights Act of 1964, several questions arise. What response from the employer constitutes “retaliation”? Is a job reassignment just as adverse as a cut in pay or firing? What about outside-the-office retaliation, like the filing of criminal charges? Several appellate courts had different insights into what constitutes retaliation under federal law, and the Supreme Court’s decision sought to address the differences.

     The Court’s solution in Burlington Northern & Santa Fe Railway Company v. White: implement one of the broadest interpretations possible. Any action that “might have dissuaded a reasonable worker” from filing a discrimination claim would count as retaliation. According to the National Federation of Independent Business (NFIB), the holding “adopted a subjective test which simply means more litigation.”

     The Washington Post’s Charles Lane added a more realistic assessment in his June 23 article, saying the new standard “will encourage lawyers for alleged victims to take on more cases, and, accordingly, raise companies’ costs for lawyers and defensive management practices.”

     But the Times’ Greenhouse offered minimized the criticism by business groups like NFIB. Instead of offering an in-depth look at the costs of this “employee-friendly” Supreme Court ruling, Greenhouse dredged up experts from the academic and legal world to agree on an obvious fact: the ruling would have a “huge effect” on employment law.