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. 

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A recent 7th Circuit case assessed these claims in the disability context and handed down what I believe to be a very favorable decision.  Our firm handles a lot of disability claims and we have found that federal courts, too often, openly disfavor these types of cases.  Seeing a decision like this does my heart good.

The heartening decision is Dewitt v. Proctor Hospital, 07-1957.  In that case, the Plaintiff-employee brought claims against the Hospital-employer for terminating her after she rejected numerous suggestions that her husband employ less expensive means of treating his prostate cancer.  Proctor, no surprise, was partially self-insured and, thus, had a vested interest in cheapening the husband’s care.  Soon after the Plaintiff refused to downgrade her husband’s care, she was fired. 

The court, in reversing the lower court’s grant of summary judgment, found that the Plaintiff had supplied ample evidence from which a jury could infer that her husband’s condition was, indeed, the reason for her termination.  The court seemed to focus its decision almost entirely on the evidence of the rather heartless discussions Hospital administrators had with Plaintiff about her husband’s care.  The court held that the evidence of those discussions constituted direct evidence by which Plaintiff could prove her claim.

Kristin M. Case is the founding Member of The Case Law Firm. The Case Law Firm, LLC is a Chicago-based civil rights employment law firm committed to representing employees throughout their employment relationships.


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Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com 

These discriminatory assumptions and action have given rise to a new category of discrimination:  Family responsibility discrimination (also known as family status discrimination). 

While the prevalence of this type of discrimination has been noted by academics and government officials alike, there is not yet any comprehensive federal anti-discrimination statute protecting family caregivers as a class.   Significantly, many state and local governments have created their own protections for family caregivers.  Indeed, the Illinois Human Rights Act protects employees from discrimination based on the narrower category of marital status, and both the Cook County and Chicago Human Rights Acts protect for both marital and parental status discrimination.  One would hope that the federal government would take note of this trend and enact similar legislation however, given our current political climate, that may be a ways off.

In the absence of specific federal protection, the United States Equal Employment Opportunity Commission has recently issued guidance to employers on the ways that discrimination against family caregivers may violate already existing laws which protect against gender and disability discrimination.  http://www.eeoc.gov/policy/docs/caregiving.html.  For instance, discrimination against pregnant women has long been prohibited under the gender discrimination provisions of Title VII of the Civil Rights Act of 1964.  Similarly, workplace policies based on stereotypes regarding family care which disparately impact men and women will be illegal under that same provision.  For example, if an employer allows for leave to care for children or parents to its female employees but not its male employees, this will be a violation of Title VII.  In addition to Title VII, the Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination against employees who have a relationship or association with a disabled person.  Thus, if an employer were to discriminate against an employee for his need to care for a disabled child, spouse, or parent, this would be a violation of the ADA. 

In addition to the EEOC, several courts have also begun to use the existing civil rights statutes to chip away at family responsibility discrimination.  For instance, in Santiago-Ramos v. Centennial P.R. Wireless Corp., the U.S. Court of Appeals for the First Circuit held that comments by decisionmakers reflecting concern that a plaintiff might not be able to balance work and family responsibilities after she had a second child could lead a jury to conclude that the plaintiff was fired because of sex, in violation of Title VII.  217 F.3d 46, 55 (1st Cir. 2000).  Additionally, the Seventh Circuit, our local court of appeals, also explained that an employer cannot consider parenthood status in making employment decisions because “….the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.  Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

Decisions such as these, as well as the EEOC’s new guidance, serves as useful reminders to employment attorneys that creative legal arguments can be used to protect the role of family caregivers in the workplace.  But perhaps more importantly, they encourage employers to craft family-friendly policies which will help them in avoiding family responsibility discrimination in the workplace.

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Kristin M. Case is the founding Member of The Case Law Firm. The Case Law Firm is a Chicago-based civil rights employment law firm committed to representing employees throughout their employment relationships.

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