Supreme Court Implies Retaliation Prohibition Twice in One Day

As we returned from the Memorial Day holiday on May 27, 2008, we were greeted by a pair of Supreme Court employment law decisions with a similar theme: whether a law prohibiting a type of employment discrimination should be interpreted to also prohibit retaliation for opposing such discrimination, though it contains no reference whatsoever to retaliation.

The decisions are not earthshaking in their practical impact. But they are noteworthy for showing solid Supreme Court majorities willing to: (1) decide employment cases in favor of employees; (2) look well beyond a conservative text-based reading of a law; and (3) apply Supreme Court decisions decided by earlier, more liberal Courts, even if they do not agree with such decisions.

Linda Greenhouse, the New York Times’ Pulitzer-prize-winning Supreme Court correspondent, has written an excellent summary: “Justices Say Law Bars Retaliation Over Bias Claims.”

Here’s her take on the broader significance of the cases:

The decisions are significant both as a practical matter and as evidence of a new tone and direction from the court this year, following a term in which there were sharp divisions and an abrupt conservative turn.

The new rulings were in distinct contrast to one of the signature decisions of the last term, a 5-to-4 decision that placed tight time limits on plaintiffs seeking to file pay-discrimination cases.

Gomez-Perez

The first case, Gomez-Perez v. Potter, involved the law prohibiting age discrimination in federal employment.

The Gomez-Perez Holding

Gomez-Perez was decided 6-3, with Justice Alito writing the majority opinion, and Chief Justice Roberts and Justices Scalia and Thomas dissenting (Scalia and Thomas joining all but one part of Roberts’ dissent).

The majority held that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) prohibits retaliation against a federal employee who complains of age discrimination, despite the fact it contains no express anti-retaliation provision.

Textual Analysis vs. Precedent in Gomez-Perez

There was a strong argument against implying this prohibition of retaliation, one made quite well in the Roberts dissent.

The ADEA has a separate section on age discrimination in private-sector employment. That section includes an express prohibition of retaliation. The parallel federal-sector provision contains no such language.

A common principle of interpretation would hold that this failure to mention retaliation in connection with the federal sector must have been intentional and must be understood as intending that retaliation in federal employment is not prohibited. Otherwise, Congress would have included a parallel anti-retaliation provision in the federal-sector section.

On the other hand, the majority found prior decisions favored implying a prohibition of retaliation. One case, Sullivan v. Little Hunting Park, Inc., decided in 1969, involved a federal law against race discrimination in property transactions. In it, the Court allowed a white man to sue for being punished by a homeowners’ association “for trying to vindicate the rights of minorities” under this law, although the law made no mention of retaliation.

The second case relied upon by the majority in Gomez-Perez, Jackson v. Birmingham Bd. of Ed., decided in 2005, relied on Sullivan in interpreting Title IX, prohibiting sex discrimination in educational programs, to prohibit retaliation, though Title IX was silent on the matter.

CBOCS West

The other case in which the Supreme Court implied a retaliation prohibition is CBOCS West, Inc. v. Humphries.

The CBOCS Holding

CBOCS was decided 7-2, with Justice Breyer writing the majority opinion, and only Justices Scalia and Thomas dissenting.

The majority held that 42 U. S. C. §1981, which prohibits race discrimination by giving “[a]ll persons … the same right … to make and enforce contracts … as is enjoyed by white citizens,” encompasses retaliation claims.

Textual Analysis vs. Precedent in CBOCS

In CBOCS, in comparison to Gomez-Perez, the textual counterargument was weaker and the application of precedent supporting the majority stronger.

The textual counterargument was weaker because it came down more to a matter of simple silence: the law says nothing about retaliation, so it must not prohibit retaliation. Lacking was another portion of the same law expressly mentioning retaliation, a circumstance giving rise to an additional textual counterargument in Gomez-Perez, as mentioned above.

The argument from precedent was stronger in CBOCS, because the law at issue is a close “cousin” to the one at issue in Sullivan, as both are post-Civil War prohibitions of race discrimination. In a number of cases, the Supreme Court has given both these laws parallel interpretations, good reason to do so here as well.

Significance

In practical terms, federal employees already have retaliation protections under federal civil service rules, as pointed out in the Perez-Gomez dissent, so the benefit of that case for employees is that it allows them to pursue the claim in a better forum, before a jury, not that it recognizes a previously completely nonexistent right.

Similarly, Title VII already unambiguously barred retaliation in connection with race discrimination, and the CBOCS plaintiff went with Section 1981 largely because his Title VII claim was foreclosed due to his failure to submit a filing fee. However, there are advantages for employees under Section 1981 relative to Title VII — longer time limits for filing and the absence of caps on damages.

From the broader viewpoint of a Supreme-Court-watcher (as opposed to just that of an employment lawyer), the Greenhouse article points out how these cases provide further clues about the still-relatively-new Justices Roberts and Alito:

Chief Justice Roberts had earlier made clear his distaste for precedents in which the court has gone beyond a statute’s text to infer a basis for a lawsuit.

It was especially significant, therefore, that both he and Justice Alito signed on to Justice Breyer’s discussion of the importance of “stare decisis,” the court’s doctrine of adherence to precedent. Even if the court’s approach to statutory interpretation was changing, Justice Breyer wrote, “we could not agree that the existence of such a change would justify re-examination of well-established prior law.”

He added: “Principles of stare decisis, after all, demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends.”

Similarly, Robert Barnes of the Washington Post says:

What intrigued legal scholars was the justices’ adherence to the court’s precedents. . . .

[Y]esterday’s endorsement of stare decisis [the following of prior decisions] — Alito wrote one of the opinions — seemed notable.

“Whereas Chief Justice Roberts and Justice Alito no doubt disagreed with the precedent . . . , they went along with Justice Breyer’s reasoning that such disagreement over statutory interpretation does not justify overturning precedent” said Ilya Shapiro, a Supreme Court scholar at the libertarian Cato Institute.

“Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error.”

Shapiro and others said Roberts and Alito are likely to be more accommodating of the court’s precedents when they pertain to statutory interpretation rather than constitutional rights.

Employers: Beware Retaliation Claims

In terms of reducing employment law exposure, these cases are another reminder of the threat posed by retaliation claims.

Such claims can succeed although the underlying discrimination claims fail. And they have special jury appeal because a retaliatory motive is plausible to a wider cross-section of jurors than a racist or sexist one (which many may prefer to think would never influence most business decisionmakers in this day and age).

Such claims don’t have to deal with the question of why all of a sudden a company that was employing a person despite their protected racial or gender status, for example, suddenly became so racist or sexist as to turn against them because of that status.

Rather, with a retaliation claim, there is a definable event — the discrimination complaint or other opposition to discrimination — that can be understood as having changed the entire employment equation, turning the employee into a hostile adversary.

Sphere: Related Content