Employer retaliation cases reach U.S. Supreme Court

Employers, managers, and supervisors wield enormous power in the workplace over the lives and wellbeing of their employees.

Congress has recognized that sometimes this power can be abused by managers who retaliate if they don't like something that employee has said or done.

This week, the US Supreme Court will hear oral arguments in two cases examining how, when – or even if – employees can fight back against such abuses of power. On Tuesday, the high court will examine whether a US postal worker can claim retaliation in a lawsuit under the Age Discrimination in Employment Act because she says her supervisor refused to let her return to her old job because he didn't like her personally. Instead, he hired a younger, less experienced worker.

On Wednesday, the justices will hear the case of a former assistant manager at a Cracker Barrel restaurant who alleges he was fired in retaliation for his repeated complaints about racial prejudice by his supervisor.

In both cases the laws cited do not explicitly authorize legal action in response to an act of retaliation. Lawyers for the employees say retaliation is a particularly virulent form of illegal discrimination and thus falls within the scope of the US's civil rights laws even when those laws don't specifically mention retaliation.

Lawyers for companies and supervisors counter that if Congress wanted to authorize lawsuits to punish acts of retaliation, it would have written it into each statute.

In 2005, the high court ruled 5-4 that a girl's high school basketball coach could sue the school board for allegedly retaliating against him after he complained his female players were not receiving equal access to sports equipment and facilities.

He sued under Title IX, which bars gender discrimination in education. Title IX does not specifically mention a cause of action for retaliation, but the majority justices found that retaliation was a form of discrimination outlawed under the statute.

The decision was written by Justice Sandra Day O'Connor. She has since retired, and it is unclear how newer members of the court, Chief Justice John Roberts and Justice Samuel Alito will view the issue.

Legal analysts say they are watching these cases to see how broadly or narrowly the high court reads the statutes.

Will the majority justices insist that unless Congress has included the specific word "retaliation" in the statute, the law does not provide a cause of action against retaliation? Or will the Supreme Court embrace a more prophylactic approach against discrimination and let employees use the force of law to counter workplace retaliation even when it is not spelled out in the statute?

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