Supreme Court Decides Two Employment Retaliation Cases
In two decisions issued May 27, 2008, the Supreme Court held that federal statutes prohibit employers from retaliating against employees, even though the statutes do not explicitly contain such a prohibition.
In CBOCS West v. Humphries, the Supreme Court found that 42 U.S.C. §1981 prohibits retaliation against an employee who has complained about a violation of §1981. Humphries, a black manager at a Cracker Barrel restaurant, filed suit under §1981, alleging that he was fired after he complained about discrimination against other black mid-level managers. §1981, a law passed in 1866, states that all “persons within the United States shall have the same rights to make and enforce contracts … as enjoyed by white citizens.” CBOCS argued that while the language of §1981 prohibits adverse treatment of individuals because of their race, it does not protect employees who complain about discrimination from retaliation.
The Court disagreed with CBOCS, holding that retaliation is prohibited by §1981. The Court relied heavily on the analysis and theories of the prior Supreme Court decisions in Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (construing 42 U.S.C. § 1982), and Jackson v. City of Birmingham, 544 U.S. 167 (2005) (construing Title IX). In Sullivan and Jackson, the Court interpreted language similar to that contained in §1981 and held that even though neither statute specifically addresses retaliation, retaliatory actions are prohibited.
In Gomez-Perez v. Potter, the Court held that the Age Discrimination in Employment Act (ADEA) prohibits retaliating against a federal employee who complains of discrimination. Gomez-Perez, a window distribution clerk for the United States Postal Service, filed suit complaining that she suffered retaliation after filing a complaint of age discrimination. The language of the ADEA which applies to federal employees, like §1981, does not specifically address retaliation. However, the portion of the ADEA applicable to private employers does specifically prohibit retaliation. Thus, the Defendants argued that if Congress had intended to provide federal employees access to the courts for complaints of retaliation, it could have done so. The majority of the Court disagreed, again holding that the language prohibits retaliation against federal employees.
Generally, these two cases taken together appear to establish a general presumption that federal statutes prohibit retaliation even if such a prohibition is not explicitly contained in the language of the statute. Of more practical significance to employers, however, is that CBOCS provides employees access to the longer four-year statute of limitations and unlimited damages of §1981.
If you have questions or would like additional information regarding the subject of this advisory, please feel free to contact any attorney in the Labor and Employment Department at Frost Brown Todd.