Employees may pursue claims of retaliation for discrimination complaints under two federal civil rights laws, the US Supreme Court ruled in a pair of cases on May 27, 2008.  The decisions represent a broad understanding of workers’ rights and signify a shift away from the Court’s prior reluctance to recognize implied rights of action against employers.  By opening additional channels through which to bring retaliation claims, the rulings afford employees greater options for redress and will likely lead to an increase in employment litigation. 

CBOCS West Inc. v. Humphries – Retaliation Claims under Section 1981

Relying mainly on precedent, the Court held, first, in CBOCS West Inc. v. Humphries, that Section 1981 of the Civil Rights Act of 1866 covers retaliation claims.  Although Section 1981 does not expressly prohibit retaliation, the Court found an implied private right of action against it. 

Writing for the majority in the 7-2 decision, Justice Stephen Breyer focused heavily on the Court’s past decisions finding implied rights to sue under Section 1982 of the Civil Rights Act of 1866 and Title IX.  The Court also relied on legislative history, highlighting House and Senate committee reports indicating Congress’ intent to protect employees against retaliation. 

In his dissent, Justice Clarence Thomas urged a plain text reading of the statute and disputed the majority’s justification based on precedent. 

Because retaliation claims are easier to file and more difficult to defend than are discrimination claims, this decision will likely lead to an increase in the number of Section 1981 claims filed.  Section 1981 prohibits discrimination based on race or ethnicity in the making and enforcing of contracts, including employment contracts, and allows employees to sue for discriminatory conduct, including termination, that occurs after contract formation.  Compared with Title VII, Section 1981 presents fewer administrative barriers to filing, including a longer statute of limitations period.  Under Title VII, an employee must typically file a claim within 300 days of the alleged discrimination, whereas, under Section 1981, an employee has four years to file a claim.  As a result, retaliation claims that were previously time-barred may now be brought, placing a burden to defend stale claims on employers.   Unlike Title VII, Section 1981 provides for uncapped compensatory and punitive damages.  Additionally, Section 1981 plaintiffs may bring their claims in federal court without first filing a charge of discrimination with the Equal Employment Opportunity Commission, as is required by Title VII.  CBOCS may therefore provide an incentive for potential plaintiffs to forgo the Title VII process and instead pursue their retaliation claims under Section 1981, an alternative avenue that may result in more court filings and fewer settlements. 

The CBOCS case stems from a suit filed by Hedrick Humphries alleging that he was fired from his job as an assistant manger for a Cracker Barrel restaurant after complaining about racial discrimination against a co-worker.  The Court’s decision upheld a 2007 ruling by the US Court of Appeals for the Seventh Circuit, allowing Humphries to pursue his retaliation claims in a district court.

Gomez-Perez v. Potter – Retaliation Claims under the ADEA

In a second case involving retaliation claims, Gomez-Perez v. Potter, the Supreme Court held that federal employees may file such claims under the Age Discrimination in Employment Act (ADEA).  In reaching the decision, which reversed the ruling of the US Court of Appeals for the First Circuit, the Court again relied heavily on precedent.  Though the ADEA does not contain an express prohibition of retaliation against federal workers, the majority found an implied right of action like that specifically set out in the statute for the private sector.

In his dissent, Chief Justice John Roberts argued that the statutory distinction between private and federal employees was intentional and that Congress did not want federal workers to have a cause of action for retaliation. 

Although most courts had already interpreted the ADEA to allow federal employees to pursue retaliation claims, the ruling eliminates any uncertainty about the right to bring these claims in federal court.  Had the court ruled against Gomez-Perez, employees likely would have retained the right to have their ADEA retaliation claims handled administratively by the Civil Service Commission.  Instead, allowing federal court access provides plaintiffs the option to pursue broader remedies, including money damages. 

Gomez-Perez, a Postal Service employee, alleges that postal managers retaliated against her, decreasing her hours and falsely accusing her of sexually harassing other employees, after she filed an ADEA complaint.

If you are interested in learning more about the US Supreme Court's recent retaliation decisions, please contact Darrell S. Gay or any member of Arent Fox's Labor and Employment Practice in New York, Los Angeles or Washington, DC.

Darrell S. Gay
darrell.gay@arentfox.com
212.457.5465