WORKPLACE LAW -
Retaliation in the Workplace
Question:
I heard that the U.S. Supreme Court recently issued two new opinions concerning retaliation in the workplace. How do these decisions affect employers?
Answer:
The U.S. Supreme Court did recently issue two new opinions that have an impact on claims of retaliation against employers. These two cases are important because they represent an expansion of the means by which employees can sue employers for claims of retaliation, making employers more vulnerable to these types of lawsuits.
In 2005, the first signs of this expansion were seen in a split U.S. Supreme Court decision in Jackson v. Birmingham Board of Education. In Jackson, in a 5 to 4 ruling, the Court held that a girls’ high school basketball coach could sue the school board for allegedly retaliating against him after he complained that his female players were not receiving equal access to sports equipment and facilities. He sued under Title IX, which bars gender discrimination in education, but does not specifically mention retaliation. Nevertheless, the majority of the justices found that “discrimination” included retaliation and further, that the prohibited retaliation could be claimed by somebody other than the person who lodged the original complaint.
Justice Sandra Day O’Connor wrote the opinion shortly before she left the bench, and many court observers believed that the new conservative majority on the Court might favor a narrower interpretation of federal anti-discrimination statutes, insisting that unless Congress included the word “retaliation” in the statute, the law does not provide for a retaliation claim. The two recent Court decisions proved them wrong.
In CBOCS West, Inc. v. Humphries, the black associate manager of a Cracker Barrel restaurant in Illinois alleged that he was fired after he complained that a black employee was terminated for race-based reasons. Humphries sued under Title VII of the Civil Rights Act of 1964, which explicitly prohibits retaliation related to an employee opposing illegal discrimination. He also sued under 42 U.S.C. §1981, a Civil-War era law that bans racial discrimination in the making and enforcing of contracts. Appellate courts across the country, including the Ninth Circuit that covers California, had previously ruled that §1981 encompasses claims of retaliation. The U.S. Supreme Court agreed, holding that §1981 includes retaliation claims, such as when an individual suffers retaliation because he or she tried to help a different individual suffering direct racial discrimination.
As a result of the decision in Humphries, employees with race-based retaliation claims now have an additional and unassailable arrow in their quivers. The California Fair Employment and Housing Act (“FEHA”) and Title VII explicitly forbid retaliation for all types of prohibited discrimination against employees. But to be subject to a retaliation claim under FEHA, the employer must have five or more employees. That cap goes up to fifteen employees for claims under Title VII, which also provides a damages cap. By comparison, under §1981, there is no cap on the number of employees an employer must have to be subject to a claim, and there is no damages cap. Additionally, if an employee has not met the requirements for filing a claim under FEHA or Title VII, he or she can resort to bringing a claim under §1981. For example, in Humphries, the employee’s Title VII claim was dismissed because he did not timely pay filing fees. However, he was still able to pursue his claims under §1981. As a result of this decision, small employers in particular are more vulnerable and should review their practices.
The second case, Gomez-Perez v. Potter, arose when a 45-year old postal worker filed suit claiming she was harassed by her supervisor and co-workers after filing an administrative claim alleging age discrimination under the ADEA (“Age Discrimination Employment Act”). The Court followed the logic of Humphries to rule that although the ADEA does not expressly prohibit retaliation by federal employers, the law nevertheless prohibits retaliation against a federal employee who complains of age discrimination. The employer argued that the right to sue based on age discrimination already existed for private-sector employers, and that the legislature purposefully did not include a similar cause of action against the federal government. The Court disagreed saying that the language of the ADEA must be interpreted in the same way as the language of similar statutes, such as §1981, that have been found to encompass retaliation without expressly referencing retaliation.
The Gomez-Perez ruling does not affect non-federal employers and therefore should not be a concern to the private sector. Nevertheless, employers of all sizes should take a clear message from these cases that retaliation will not be tolerated against employees who allege discrimination. In addition to immediately addressing complaints of discrimination or harassment, employers must also monitor how employees are treated after making such complaints to avoid retaliation lawsuits.
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