by Jackson Lewis
In separate decisions issued the same day, the Supreme Court has given
employees the okay to bring retaliation claims against their employers
under anti-discrimination statutes, even though the laws make no
mention of a retaliation cause of action. In CBOCS West, Inc. v.
Humphries, the Court held by a 7-2 vote that a Reconstruction-era civil
rights statute prohibiting race discrimination permits retaliation
claims. No. 06-1431, 553 U.S. ____ (May 27, 2008). In the other case,
Gomez-Perez v. Potter, the Court ruled by a 6-3 vote that federal
employees who complain about age discrimination are protected from
retaliation by their employers under the Age Discrimination in
Employment Act ("ADEA"). No. 06-1321, 553 U.S. ____ (May 27, 2008).
Stare
decisis, literally meaning "to stand by things decided," played a hand
in both rulings. Only three years ago, the Court issued a 5-4 decision
authored by now-retired Justice Sandra Day O'Connor holding that the
broad prohibition on gender discrimination in Title IX of the Education
Amendments of 1972 ("Title IX") encompasses retaliation claims even
though the statute does not specifically provide for a retaliation
cause of action. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167
(2005). Jackson relied on an earlier case in which the Court ruled that
another post-Civil War statute, 42 U.S.C. §1982, prohibiting
discrimination in property transfers allows for retaliation claims.
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969). Justices
Thomas and Scalia, who both dissented in Jackson, filed dissenting
opinions in Humphries and Potter. Chief Justice Roberts dissented in
Potter, but not Humphries, on the theory that "protection against
discrimination may include protection against retaliation for
complaining about discrimination, but that is not always the case."
CBOCS West, Inc. v. Humphries: The Race Case
The plaintiff in
this case, Hedrick G. Humphries, who worked as an assistant manager for
the Cracker Barrel restaurant chain, brought a lawsuit against his
employer alleging he was terminated because of his race and because he
complained about racial discrimination against a co-worker. Mr.
Humphries asserted claims under both Title VII of the Civil Rights Act
of 1964 ("Title VII") and §1981, a post-Civil War statute prohibiting
discrimination with regard to the right to "make and enforce
contracts." The statute is derived from the Civil Rights Act of 1866,
which implemented the Thirteenth Amendment, abolishing slavery. Like
Title VII, §1981 protects employees from race discrimination, but
unlike Title VII, it does not specifically prohibit retaliation. The
Supreme Court agreed to hear this case after the Seventh Circuit Court
of Appeals found that the plaintiff was entitled to proceed on a §1981
retaliation theory.
Stare decisis largely guided the
majority's decision that §1981 allows retaliation claims. Because of
the similarity between §1981 and §1982--the latter also derived from
the 1866 Civil Rights Act--as well as the federal appellate courts’
consistent interpretation of §1981 as encompassing retaliation claims,
there was no reason to displace the decisions in Sullivan and Jackson,
the majority ruled.
Justice Breyer, who authored the
majority's decision, also rejected the employer's argument that §1981
would overlap with Title VII, which provides a different remedial
scheme, if it were interpreted to provide a retaliation cause of
action. "This argument...proves too much," wrote Justice Breyer.
"Precisely the same kind of TitleVII/§1981 'overlap' and potential
circumvention exists in respect to employment-related direct
discrimination," he continued.
Justice Thomas, joined by
Justice Scalia, dissented vehemently. "Retaliation is not
discrimination based on race," wrote Justice Thomas, emphasizing the
distinction between anti-discrimination provisions which prohibit
discrimination based on who an individual is, and anti-retaliation
provisions which seek to protect individuals based on what they do.
Justice Thomas reiterated his belief that the Court misinterpreted
Sullivan in the Jackson decision, pointing out that the former decision
does not even contain the word "retaliation."
The ruling is
significant because §1981 has a longer statute of limitations than
Title VII and, unlike Title VII, contains no limitations on the amount
of punitive and pain and suffering damages available to a plaintiff. In
addition, a plaintiff must file a charge of discrimination with the
EEOC prior to suing in federal court under Title VII within 300 days of
the alleged discriminatory act. In contrast, under §1981, a plaintiff
may file a lawsuit immediately, and has four years in which to do so.
Gomez-Perez v. Potter: The Age Case
In Potter, the Supreme
Court was called upon to determine whether the ADEA's federal sector
provision, 29 U.S.C. § 633a(a), which--unlike the Act's private sector
provision--does not explicitly mention retaliation, permits federal
employees to bring retaliation claims.
Justice Alito, writing
for the majority of the Court, concluded that §633a(a), which requires
that "[a]ll personnel actions affecting employees...at least 40 years
of age...be made free from any discrimination based on age,"
encompasses retaliation claims. The majority's decision was guided by
Sullivan and Jackson.
As Justice Alito made clear, the
Government--the defendant in this case arguing against a retaliation
cause of action in the federal sector ADEA provision--urged the Court
to follow Sullivan in both Jackson and Humphries. Indeed, the
Government submitted in amicus curiae, or "friend of the court," brief
in Humphries asserting that §1981's prohibition on
"discrimination...quite naturally includes discrimination on account of
having complained about discrimination," Justice Alito noted.
The
Court found it of little consequence that the federal sector provision
is silent on a retaliation cause of action. "Respondent places too much
reliance on the presence of an ADEA provision specifically prohibiting
retaliation against individuals complaining about private-sector age
discrimination...and the absence of a similar provision in §633a(a),"
explained Justice Alito. Among other things, he pointed out that the
two statutes were enacted seven years apart and structured differently,
with the private sector provision specifically listing prohibited
practices.
In dissent, Chief Justice Roberts, joined by
Justices Thomas and Scalia, maintained that the statutory language and
structure of the federal sector provision demonstrate that Congress did
not intend to create a cause of action for retaliation. "Congress was
not sloppy in creating this distinction; it did so for good reason:
because the federal workplace is governed by comprehensive regulation,
of which Congress was well aware, while the private sector is not,"
Chief Justice Roberts concluded.
The Potter decision is the second of four rulings regarding age discrimination from the nation's highest court this term.
__________________________
Both
age discrimination and retaliation cases feature prominently on the
Supreme Court's docket this year. Employers should note that the number
of retaliation cases has climbed steadily in recent years. In the last
decade, the number of charges filed with the EEOC alleging employment
retaliation has continued to grow, increasing from 18,198 in 1997 to
26,663 in 2007. Retaliation claims now represent over 32 percent of all
charges filed with the EEOC. Likewise, age discrimination claims have
climbed from 19.6 percent to 23.2 percent of the total number of
charges filed with the EEOC.
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