Retaliation Risks Rise

Although the present U.S. Supreme Court may still be regarded as relatively conservative when it comes to employment law issues, it has put employers on notice that retaliation against employees who complain about discrimination or harassment won’t be tolerated.  In 2006, the Court (9-0 decision) made it easier for employees to assert retaliation claims under Title VII of the Civil Rights Act of 1964 in Burlington Northern & Santa Fe Railway v. White.  Now in back to back decisions on May 27, 2008, the Court has reiterated its antipathy toward retaliation in CBOCS West, Inc. v. Humphries (7-2 decision) and Gomez-Perez v. Potter (6-3 decision).

In the Humphries case, an employee sued for retaliation under 42 U.S.C. 1981 (Section 1981), a post-Civil War era law that prohibits race discrimination.  Section 1981 has long been applied to the employment arena, but in 1989, the Supreme Court ruled that Section 1981 didn’t prohibit most types of race discrimination (including retaliation) that occur after the commencement of an employment relationship.  When Congress passed the Civil Rights Act of 1991, part of its intent was to overturn the 1989 ruling.  The Court’s decision in Humphries makes it clear that Congress did change the law and that retaliation on the basis of race is covered by Section 1981.

What difference does it make?  After all, as demonstrated in the Burlington Northern case, employees can use Title VII for retaliation claims.  Section 1981 applies to all employers, while Title VII applies to employers that have 15 or more employees.  An employee has four years to file suit under Section 1981, while Title VII provides a shorter period of time.  Title VII places a cap on damages that an employee can recover, while Section 1981 doesn’t.

In the Gomez-Perez case, a postal employee claimed that she had been retaliated against after she complained of age discrimination under the Age Discrimination Employment Act (ADEA).  The ADEA has separate provisions that apply to federal employers like the U.S. Postal Service.  Unlike the general ADEA provisions applicable to private employers, the federal employer provisions don’t specifically prohibit retaliation.  No matter, said the Supreme Court.  It doesn’t make sense that federal employees wouldn’t be protected from retaliation just like private employees are.

Anytime an employee files a discrimination or harassment claim, a retaliation claim is lurking around the corner.  Retaliation is often easier to prove than discrimination or harassment.  Discrimination or harassment is ususally a one-on-one thing.  Retaliation will most likely involve witnesses.  Although it has been argued that the Supreme Court went too far in its two most recent cases, it’s now clear that retaliation is in the same category of unlawful conduct as discrimination and harassment.   It’s important that your managers and supervisors understand that just as clearly as you do.