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Supreme Court Again Broadens Scope of Fair Employment Anti-Retaliation Provisions

By James F. Shea
May 26, 2009

The end of the Bush administration and the first six weeks of the Obama administration resulted in significant changes to key federal fair employment statutes. Notably, in September 2008, the Americans with Disabilities Act Amendments Act was signed by President Bush; in November 2008, the U.S. Department of Labor issued its final revised regulations applicable to the Family and Medical and Leave Act, and in January 2009, the Lilly Ledbetter Fair Pay Restoration Act was signed by President Obama. Other major legislative efforts, including The Paycheck Fairness Act, which would alter key provisions of the Equal Pay Act of 1963, and the Employee Free Choice Act, which would, among other things, amend the National Labor Relations Act to eliminate secret ballot elections for selection of union representation, are under consideration in Washington.

These statutory and regulatory enactments have been widely debated and publicized as part of the legislative process. Equally important, but without any of the public comment and debate associated with major legislative changes, have been four U.S. Supreme Court decisions issued since June 2006, which have significantly expanded the scope of the anti-retaliation provisions of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and 42 U.S.C. ' 1981.

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