Labor & Employment Law

Employment retaliation at the Supreme Court

This week the US Supreme Court will hear two cases that will decide whether it is illegal for an employer to retaliate against an employee for complaining about discrimination.

It's already clear that retaliation is unlawful under Title VII, and under the private sector provisions of the Age Discrimination in Employment Act (ADEA), and other statutes I won't mention here.

The questions raised this week in two cases are

• Gómez-Pérez v. Potter (oral argument February 19) [details, briefs]

  Whether, for a federal employee, the ADEA prohibits retaliation for filing an EEO complaint.

  Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age. The 1st Circuit held that the ADEA does not provide a cause of action for retaliation by federal employers. Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation. In contrast, the parallel provision (Section 623(d)) governing private employers specifically prohibits retaliation. The US Supreme Court granted certiorari to review the 1st Circuit's judgment.

• CBOCS West, Inc. v. Humphries (oral argument Febrary 20) [details, briefs]

  Whether 42 USC section 1981 provides a cause of action for retaliation.

  Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race. Section 1981 prohibits race discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." There is no express mention of retaliation. The 7th Circuit held (2-1) that Section 1981 provides a cause of action for retaliation. The US Supreme Court granted certiorari to review the 7th Circuit's judgment.

A third retaliation case is on the docket, but it looks like the oral argument will be put off until October. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee [details, briefs] - Crawford claimed she was discharged because she cooperated in her employer's investigation of sexual harassment complaints against another employee. No EEOC charge had been filed prior to the investigation. Title VII Section 704(a) protects an employee from retaliation because the employee "has opposed" an unlawful employment practice or "participated in any manner in an investigation ... under this chapter." The 6th Circuit held that Crawford was not protected by either the "opposition" clause or the "participation" clause. The US Supreme Court granted certiorari to review the 6th Circuit's judgment.

Other comments on these cases:

Workplace Prof Blog: Big Week at Supreme Court for Employment Retaliation Cases

ACS Blog: Three Retaliation Claims Cases Reach the Supreme Court: Video Excerpts (with videos)

Full post as published by Ross' Employment Law Blog on February 18, 2008 (boomark / email).