Publications: Supreme Court Blesses Additional Workplace Retaliation Claims

In a well-publicized pair of employment liability decisions, the U.S. Supreme Court this week recognized workplace retaliation claims by federal sector employees under the Age Discrimination in Employment Act and retaliatory discharge claims under the Civil Rights Act of 1866.

The Cases
In Gomez-Perez v.Potter, Postmaster General, a 45-year-old postal worker claimed that she suffered various forms of retaliatory, on-the-job punishment because she filed an administrative age discrimination complaint. Both lower courts found that the federal sector employment provisions of the ADEA barring “discrimination based on age” did not also prohibit workplace retaliation against an employee for opposing age discrimination. But the Supreme Court reversed these rulings, remanding Gomez-Perez’s suit for further trial court proceedings and finding that the ADEA’s federal sector age discrimination prohibitions do outlaw retaliation, even though they do not expressly bar a federal employer from retaliating against an age discrimination claimant.

In CBOCS West, Inc. v. Humphries, the African-American former assistant manager of a Cracker Barrel restaurant claimed that his firing was retaliatory punishment for his workplace complaints that another African-American employee’s discharge was racially motivated. He sued under both Title VII of the 1964 Civil Rights Act and the 1866 Civil Rights Act, 42 U.S.C. § 1981¹. Although the district court dismissed both claims, finding in particular that §1981 did not prohibit retaliation, the 7th Circuit Court of Appeals reinstated Humphries’ §1981 retaliation claim, finding that the law entitled him to proceed. The Supreme Court agreed with the Seventh Circuit, finding that despite §1981’s lack of an express prohibition of workplace retaliation (indeed, §1981 contains no reference even to employment), the law bars workplace retaliation against employees who oppose racial discrimination in employment.

Why They Matter

Retaliation claims present some of the most inflammatory and dangerous employment discrimination allegations. Persuasive evidence that an employee was discharged or harassed for opposing illegal discrimination can inspire juries to punish offending employers with large awards to deter further violations of the law and to set a cautionary example for other employers. Courts often deem retaliation a particularly repugnant form of employer misconduct, punishable as such, since it deters employees from making protected complaints about illegal discrimination and thus undermines the enforcement of the equal employment opportunity laws.

The Gomez-Perez v. Potter decision directs federal sector employers that retaliation against those who oppose workplace age discrimination will not be tolerated, whether the federal sector age discrimination laws explicitly prohibit retaliation or not. And the Humphries case instructs all employers that their exposure for retaliating against workers who oppose race discrimination is not limited to Title VII. While Title VII, as amended, incorporates sliding-scale caps on punitive and compensatory damages awards based on an employer’s size, §1981 has no such damages ceilings. So although §1981 was enacted just after the Civil War, Humphries breathes new life into its effectiveness to compensate employees who suffer workplace retaliation for opposing racial discrimination. And unlike Title VII claimants, plaintiffs who sue under §1981 are not required to file administrative discrimination charges or to submit their complaints for conciliation in the EEOC or comparable state agencies. Section 1981 claimants are also not subject to the relatively short limitations periods that govern employment discrimination claims under the 1964 Civil Rights Act and its amendments. So an employee with a time-barred Title VII retaliation case may still have a timely §1981 retaliation complaint that is subject to no damages limits and that she may file directly in court, rather than in the EEOC or a state agency, such as the Illinois Department of Human Rights.

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¹ Section 1981(a) provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.