You would think it would be fairly obvious that a statute outlawing discrimination in the workplace would also implicitly outlaw retaliation for lodging a discrimination complaint. The U.S. Supreme Court had made that assumption in the past. But when it comes to the rights of workers, nothing can be taken for granted with the current high court.
So it came as a surprise to court observers last week to see strong majorities in two recent cases adhering to past precedent and finding that employees are protected by law from retaliation as well. This could indicate that some members of the court's conservative majority are reconsidering their narrow reading of workers' rights.
One of the worst Supreme Court rulings of last term was the case involving Lilly Ledbetter, a supervisor at an Alabama Goodyear Tire and Rubber plant who was paid less than similarly positioned men. In a 5-to-4 ruling, the court said that Ledbetter's sex discrimination complaint was invalid because she failed to file it within six months of the original pay disparity. The ruling completely disregarded the long-standing practice of considering each discriminatory paycheck a new violation. And it meant that if an employer could get away with paying a woman less for six months, he could do so for her entire career and not have to worry about a Title VII claim.
There was a general expectation that the high court would engage in this kind of crimped reading of civil rights statutes in the two retaliation cases before it. But by comfortable majorities, the court read a post Civil War-era civil rights statute and a federal age discrimination law rather generously. The court said those statutes allowed employees to sue if they suffered retaliation after complaining about employment discrimination, even though neither statute explicitly mentions retaliation.
In CBOCS West Inc. vs. Humphries, Hendrick Humphries, who is black, claims he was fired from his job as an assistant manager at a Cracker Barrel restaurant in Illinois after complaining that his general manager had fired a black employee due to bias and had made racially offensive comments.
The court held 7-to-2, with only Justices Antonin Scalia and Clarence Thomas dissenting, that the 1866 statute known as Section 1981 should be read expansively. It is one of the nation's oldest civil rights laws and was intended to protect newly freed slaves in their business dealings and employment with whites. The court's ruling allows Humphries to bring his suit before a jury.
In the second case, Gomez-Perez vs. Potter, Myrna Gomez-Perez, a postal worker in Puerto Rico, claims that after she filed an age discrimination complaint, she had her work hours cut and was harassed. The court ruled 6-to-3 that the Age Discrimination in Employment Act covers retaliation claims by federal workers.
Once again the high court pointed to precedent and said that Congress intended to facilitate a broad ban on age discrimination in its passage of ADEA. These cases are encouraging. Maybe the fierce negative reaction to the Ledbetter decision stung some of the justices; or maybe some members of the conservative majority are reconsidering the clip at which they disregard established precedent. Whatever the reason, the laws in place to protect workers from job discrimination just got a bit sturdier.