Wednesday, June 4, 2008

Retaliation for Filing a Discrimination Complaint is a No-no.

American workers who complain about race or age discrimination on the job can sue their bosses for any subsequent retaliation.

In two Supreme Court decisions on Tuesday, 27 May 2008 the Supreme Court embraced an expansive view of civil rights laws that do not explicitly outlaw acts of retaliation.

The majority justices said the overall purpose of the laws suggests an intent by Congress to prevent discrimination – including retaliation aimed at punishing those who file age- or race-discrimination complaints.

At issue in both cases was whether Congress had created a cause of action in the law to permit retaliation lawsuits.

Some laws, such as Title VII of the Civil Rights Act of 1964, ban retaliation in response to any discrimination complaint, other important civil rights laws make no mention of retaliation.

The majority justices ruled that employees can claim legal protections against retaliation even if the law does not specifically bar acts of retaliation.

Both decisions are important because they affirm a trend at the high court embracing an expansive reading of civil rights laws.

In both cases, employees sued their supervisors for alleged acts of retaliation in the workplace after the workers had made initial complaints about discriminatory conduct by managers. One suit was filed under Section 1981 of the Civil Rights Act of 1866. The other was filed under the public employee section of the Age Discrimination in Employment Act of 1967. Neither law mentions retaliation.

The Supreme Court also affirmed the Seventh Circuit decision in the Humphries case by a vote of 7 to 2. Chief Justice John Roberts dissented in the Gomez-Perez case but joined the majority in the Humphries case.

The decision in the Humphries case involves a former assistant manager at a Cracker Barrel restaurant in Bradley, Ill., who was allegedly fired in retaliation for his repeated complaints about racial prejudice by his supervisor.

Hedrick Humphries, who is African-American, had worked for three years at the Cracker Barrel. In 2001, he complained to a district manager that the general manager at the Bradley restaurant made racially offensive remarks and that the general manager's termination of a Black employee had been racially motivated.

The district manager took no action against the general manager. Instead, he fired Mr. Humphries based on a report that Humphries had left the store safe open overnight. Humphries denies the allegation.

Humphries filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) under both Title VII and Section 1981. The EEOC verified his complaint and issued a letter authorizing him to file suit in federal court.

By the time Humphries filed his lawsuit, the Title VII complaint was dismissed because he missed a deadline to pay his filing fee. No such deadline exists for Section 1981 suits, so that portion of the suit survived the first challenge. But the Section 1981 complaint was later thrown out because the judge found there was insufficient evidence to support a suit.

Section 1981 is one of the oldest civil rights statutes in the nation, passed after the Civil War to force southern employers to honor employment and other contracts with newly freed slaves. Humphries argued that such a broad prohibition of discrimination would surely also outlaw acts of retaliation related to discrimination.

The Seventh Circuit Court of Appeals in Chicago agreed, reversing the previous ruling and finding that Humphries was entitled to file a retaliation suit.


The second case involves a US Postal Service employee in Puerto Rico, Myrna Gomez-Perez, who says her supervisor retaliated against her after she filed an age-discrimination complaint against him.

Ms. Gomez-Perez says that after filing her complaint she was harassed and mocked and accused of sexual harassment. She claims her work hours were substantially reduced.

She filed suit under the Age Discrimination in Employment Act (ADEA), claiming her supervisors had engaged in retaliation and discrimination. Both a federal judge and the Boston-based First Circuit Court of Appeals threw the suit out. The appeals court ruled that the ADEA does not cover acts of retaliation since the word "retaliation" does not appear in the statute.

The Supreme Court reversed that decision by a vote of 6 to 3.

In upholding the Seventh Circuit, the majority justices said there was no need for Congress to include explicit language about retaliation. Congress's intent to facilitate expansive civil rights enforcement was clear from subsequent congressional amendments to the laws, Justice Breyer writes.

In his dissent, Justice Clarence Thomas criticized the majority for retreating behind "the fig leaf of ersatz stare decisis." He accused the majority of misreading prior legal precedents.

Thomas says the high court's decision "creates an entirely new cause of action" unrelated to race discrimination.

"By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose," writes Thomas. "That the court does so under the guise of stare decisis does not make its decision any more justifiable."

Justice Samuel Alito, writing for the majority in the Gomez-Perez case, presents the same core legal analysis as Justice Breyer does in the Humphries case. Both decisions cite the 1969 opinion Sullivan v. Little Hunting Park and the 2005 decision Jackson v. Birmingham Board of Education.

Alito says Congress meant the ADEA to be a broad, general ban on age discrimination. "Congress was presumably familiar with Sullivan and had reason to expect that this ban would be interpreted in conformity with that precedent," Alito writes.

These decisions add momentum to an important trend at the high court toward embracing an expansive approach to the interpretation of civil rights statutes.

In 2005, the Supreme Court ruled 5 to 4 in the Jackson case that a girl's high school basketball coach could sue the school board for alleged retaliation against him after he complained that his female players were not receiving equal access to sports equipment and facilities.

He sued under Title IX, which bars gender discrimination in education. Like Section 1981, Title IX does not specifically mention a cause of action for retaliation. Nonetheless, the majority justices found that retaliation was a form of discrimination outlawed under the statute.

The decision was written by then Justice O'Connor. Now, with O'Connor no longer on the court, the justices affirmed the same principle, but this time instead of 5 to 4, the votes were 6 to 3 and 7 to 2

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