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The United States Supreme Court recently issued  two very favorable decisions for employees.  On May 27, 2008, the Court held that employers cannot retaliate against employees who assert their rights under two federal anti-discrimination statutes.  These decisions came as a welcome surprise to plaintiff’s employment attorneys, many of whom worried that over the next few terms partisan lines in our judiciary may work to erode employee rights. 

First, in Gomez-Perez v. Potter, the Court reversed a Ninth Circuit decision and held that the Age Discrimination in Employment Act (“ADEA”) prohibits retaliation against a federal employee who asserts his rights under the act.  Although the ADEA provision protecting private employees explicitly protects those employees from retaliation, the provision protecting public employees is silent on the issue.  In holding in favor of employee rights, the Court relied on its own precedent.  The Court had twice prior held that federal anti-discrimination statutes protected citizens from retaliation, first with regard to 42 USC § 1982, which prohibits race discrimination in property ownership, and next with regard to Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education.  Because all three of these statutes are in essence “remedial provisions aimed at prohibiting discrimination,” the Court held that they must be interpreted similarly.  Thus an anti-retaliation provision was read into the ADEA’s provision prohibiting age discrimination against federal employees.

Next, in CBOCS West, Inc. v. Humphries, the Court applied the same reasoning in upholding a Seventh Circuit decision interpreting 42 USC § 1981 to include protection against retaliation.  The Plaintiff in CBOCS West, Hedrick Humphries, was an African-American assistant manager for Cracker Barrel. Mr. Humphries alleged that after complaining to his manager that he had witnessed race discrimination by another assistant manager, he was terminated.  Mr. Humphries brought suit under § 1981, a federal statute prohibiting race discrimination in contract.  By inferring an anti-retaliation provision into § 1981, the Court upheld every Federal Circuit Court’s reading of the statute, and extended the reasoning of Gomez-Perez. 

Justices Alito and Thomas joined Chief Justice Roberts in dissenting to these two opinions.  They argued that the precedent upon which the Court relied was incorrectly decided in the first place.  They protested against judicial interpretation of statutes which reads language into a statute that is not explicitly included by Congress.  However, these inferred anti-retaliation provisions simply make sense.  A statute prohibiting discrimination has no teeth if an employer may intimidate, harass or terminate an employee who seeks that statute’s protection.  By reading in an employee’s privilege not to be retaliated against for standing up for his or her workplace rights, the Supreme Court reminds employers that those rights are not to be taken lightly. 

The Case Law Firm, LLC.
Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com