<b>BREAKING NEWS:</b> Supreme Court Makes It Easier For Employers to Sue for Retaliation

The U.S. Court of Appeals for the 7th Circuit ruled that Humphries' Title VII claim was foreclosed, but the court ruled that his suit could go forward under 42 U.S.C 1981, the Civil War-era law that bars discrimination in private contracts. The Supreme Court, led by Justice Stephen Breyer, agreed, finding that under Court precedent and congressional enactments, Section 1981 should encompass retaliation claims — even though retaliation is not specifically mentioned as a cause of action.

Under that law, a plaintiff has four years to sue, and there is no limit on damages, says Diana Hoover, an employment litigator for Mayer Brown. She said that most federal circuits had already ruled that Section 1981 suits were allowed for retaliation, but “the law will get more play from plaintiffs lawyers now that the Supreme Court has spoken.” Some claims that were “stale” under Title VII could get revived because of the decision, she added.

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented. “Retaliation is not discrimination based on race,” Thomas wrote, adding that retaliation is directed at conduct, not race.

Liberal groups accustomed to slamming the Court for its rulings in the employment area offered backhanded compliments. Kathryn Kolbert, president of the People for the American Way Foundation, said in a statement, “In case after case, the Supreme Court's right-wing justices have teamed up to undercut the rights of everyday Americans and protect powerful business and government interests. … We applaud today's decisions as a rare departure from this destructive trend.”

American Civil Liberties Union legal director Steven Shapiro issued a statement asserting that, “Workers who fear retaliation are far less likely to report discrimination. Congress understood as much when it passed laws prohibiting employment discrimination based on race and age. By acknowledging that fact in its decisions today, the Court has protected workers and respected congressional intent.”

In the other employment ruling, Gomez-Perez v. Potter, the justices ruled 6-3 that the Age Discrimination in Employment Act also covers retaliation claims brought by federal workers against their employers. Postal worker Myrna Gomez-Perez claimed she was retaliated against when she complained that she had been assigned to a part-time job because of her age. But the U.S. Court of Appeals for the 1st Circuit said the ADEA's federal workplace provision did not allow for retaliation claims.

With Justice Samuel Alito Jr. writing for the majority, the Court reversed, ruling that the ADEA does cover retaliation by federal employers. In a rare dissent, Chief Justice John Roberts Jr. said retaliation claims are handled under civil service procedures, and Congress did not intend to create a separate cause of action under ADEA. Justices Antonin Scalia and Clarence Thomas joined Roberts' dissent.

“This is an enormous victory for the more than one million federal civil service employees covered by the act, who as a result of today's ruling have the same protection against retaliation that workers in the private sector all enjoy,” said Sidley Austin partner Joseph Guerra, who argued on behalf of Gomez-Perez.

Tony Mauro covers the U.S. Supreme Court for ALM/Incisive Media.

In a pair of workplace discrimination cases, the Supreme Court on May 27 made it easier for workers to sue employers who retaliate against them for reporting bias.

One ruling, affecting private employers, will give employees more time to file suit and larger potential damage awards when they claim employer retaliation than they had before. The 7-2 decision was titled CBOCS West Inc. v. Humphries.

Under Title VII of the Civil Rights Act, Hedrick Humphries, an assistant manager at an Illinois Cracker Barrel restaurant, was deemed to have filed his racial discrimination complaint too late. He said he had been fired because he was black and because he had complained about racial bias directed against a co-worker. Under Title VII, once the Equal Employment Opportunity Commission has issued a “right to sue” letter, plaintiffs like Humphries have 90 days to file suit in federal court. Damages are also subject to caps depending on the size of the company.

The U.S. Court of Appeals for the 7th Circuit ruled that Humphries' Title VII claim was foreclosed, but the court ruled that his suit could go forward under 42 U.S.C 1981, the Civil War-era law that bars discrimination in private contracts. The Supreme Court, led by Justice Stephen Breyer, agreed, finding that under Court precedent and congressional enactments, Section 1981 should encompass retaliation claims — even though retaliation is not specifically mentioned as a cause of action.

Under that law, a plaintiff has four years to sue, and there is no limit on damages, says Diana Hoover, an employment litigator for Mayer Brown. She said that most federal circuits had already ruled that Section 1981 suits were allowed for retaliation, but “the law will get more play from plaintiffs lawyers now that the Supreme Court has spoken.” Some claims that were “stale” under Title VII could get revived because of the decision, she added.

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented. “Retaliation is not discrimination based on race,” Thomas wrote, adding that retaliation is directed at conduct, not race.

Liberal groups accustomed to slamming the Court for its rulings in the employment area offered backhanded compliments. Kathryn Kolbert, president of the People for the American Way Foundation, said in a statement, “In case after case, the Supreme Court's right-wing justices have teamed up to undercut the rights of everyday Americans and protect powerful business and government interests. … We applaud today's decisions as a rare departure from this destructive trend.”

American Civil Liberties Union legal director Steven Shapiro issued a statement asserting that, “Workers who fear retaliation are far less likely to report discrimination. Congress understood as much when it passed laws prohibiting employment discrimination based on race and age. By acknowledging that fact in its decisions today, the Court has protected workers and respected congressional intent.”

In the other employment ruling, Gomez-Perez v. Potter, the justices ruled 6-3 that the Age Discrimination in Employment Act also covers retaliation claims brought by federal workers against their employers. Postal worker Myrna Gomez-Perez claimed she was retaliated against when she complained that she had been assigned to a part-time job because of her age. But the U.S. Court of Appeals for the 1st Circuit said the ADEA's federal workplace provision did not allow for retaliation claims.

With Justice Samuel Alito Jr. writing for the majority, the Court reversed, ruling that the ADEA does cover retaliation by federal employers. In a rare dissent, Chief Justice John Roberts Jr. said retaliation claims are handled under civil service procedures, and Congress did not intend to create a separate cause of action under ADEA. Justices Antonin Scalia and Clarence Thomas joined Roberts' dissent.

“This is an enormous victory for the more than one million federal civil service employees covered by the act, who as a result of today's ruling have the same protection against retaliation that workers in the private sector all enjoy,” said Sidley Austin partner Joseph Guerra, who argued on behalf of Gomez-Perez.

Tony Mauro covers the U.S. Supreme Court for ALM/Incisive Media.