Retaliation decisions surprise many

After several pro-employer decisions last term – including a controversial ruling that prompted lawmakers to draft legislation to overturn it – the U.S. Supreme Court recently expanded the right of employees to sue for retaliation under two federal statutes.
In Gomez-Perez v. Potter, No. 06-1037, the court held 6-3 that federal employees who complain of age discrimination have the right to bring a retaliation claim under the Age Discrimination in Employment Act.
And in a 7-2 ruling in CBOCS West v. Humphries, No. 061431, the court held that an employee who lost his job after complaining about the racially discriminatory treatment of another employee can bring a claim under 42 U.S.C. §1981.
The decisions are surprising since last year’s opinions in favor of employers were punctuated with strong language admonishing against expanding causes of action.
Justices Clarence Thomas and Antonin Scalia dissented in both cases. Chief Justice John G. Roberts, Jr. dissented in the ADEA case only.
Some court watchers were surprised the justices would take such an expansive approach to retaliation claims – particularly in light of their decision last term that the statute of limitations for disparate pay claims under Title VII can’t be restarted with each paycheck. (Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162).
“I thought both cases would come out 5-4 in favor of the employer,” said Paul M. Secunda, a professor at the University of Mississippi School of Law and editor of the Workplace Prof Blog (lawprofessors.typepad.com/ laborprof blog).

Reliance on precedent

In Gomez-Perez and CBOCS West, the court relied heavily on precedent, taking cues from other federal statutes the majority permit redress for retaliation.
Both cases relied on Sullivan v. Little Hunting Park, 396 U.S. 229 (1969), in which the court recognized retaliation claims under §1982, and Jackson v. Birmingham Board of Ed., 544 U.S. 167 (2005), which upheld retaliation claims under Title IX.
“Following the reasoning of Sullivan and Jackson, we interpret the ADEA federal-sector provision’s prohibition of ‘discrimination based on age’ as likewise proscribing retaliation,” Justice Samuel Alito Jr., wrote in Gomez-Perez. “The statutory language at issue here [is] not materially different from the language at issue in Jackson [and] is the functional equivalent of the language at issue in Sullivan.”
Similarly, in CBOCS West Justice Stephen Breyer wrote, “Sullivan, as interpreted and relied upon by Jackson, as well as the long line of related cases where we construe §§1981 and 1982 similarly, lead us to conclude that the view that §1981 encompasses retaliation claims is indeed well embedded in the law.”
Michael Hanlon, a partner in the Philadelphia office of Blank Rome and head of the firm’s Employment, Benefits, and Labor practice group, said the decisions were surprising.
“Based on Ledbetter, there was an expectation the court would use these cases to contract or slow down the expansion of retaliation claims,” Hanlon said.
A key distinction is that Ledbetter concerned a statute that specifically set a limit for filing claims, while in both Gomes-Perez and CBOCS West the issue under consideration wasn’t addressed in the text of the statute.
Language in the ADEA covering private sector employees explicitly includes retaliation as a cause of action, but language covering federal employees (like the plaintiff in Gomez-Perez) provides no express cause of action for retaliation. Similarly, §1981 does not specifically address retaliation claims.
“Ledbetter was a classic textualism decision,” said Secunda. “They looked at the statute, looked at the words, and said that it was unambiguous. They couldn’t do that in these cases. The words weren’t there.”
Hanlon said this line of reasoning could prove troublesome.
“Their unwillingness to do anything to undo the trend [could result in] expanding the law of discrimination to include any adverse action that takes place,” he said. “If you are a plaintiffs’ lawyer now, do you look for a way to get around Title VII? Do you look for a way to bring a claim out of Title VII, with its statute of limitations and damages cap?”
But Secunda said the court could easily reverse the trend.
“Breyer and Alito both indicated that neither [defendant] asked [the court] to reexamine the precedent,“ he noted. “Neither asked the court to overrule Sullivan or Jackson. That’s almost giving the next defendant the playbook to how to approach this kind of claim. Then the court could come out and say: ‘we should stop implying the right of action under these statutes.’”

Tide change?

Most experts don’t see the latest decisions as representing any sort of sea change on the court’s part.
The Ledbetter ruling last term drew strong criticism from plaintiffs’ attorneys, civil rights groups and lawmakers. Justice Ruth Bader Ginsburg even read her dissent from the bench, urging Congress to act.
But Congress failed earlier this year to pass legislation that would restart the time for filing a Title VII disparate pay claim.
Secunda said it’s unlikely those developments had any impact on the justices.
“I don’t think the court works that way,” he said. “I don’t think the court reacts to pressure from Congress. I think Ledbetter was just a different type of case than these two cases.”