Employer retaliation cases reach U.S. Supreme Court

The court has also agreed to decide a third retaliation case, which has not yet been set for oral argument. It involves a woman who was fired after she was asked to provide evidence against a co-worker accused of sexual harassment. Her retaliation lawsuit was thrown out because she had never filed an underlying sexual harassment suit.

The high court's granting of three similar cases in such a short period of time is unusual, legal experts say, and suggests that the issue of retaliation is of some importance to the justices. What remains unclear, they say, is whether the court will decide these cases in ways that expand civil rights protections or narrow them.

"The court has taken a number of retaliation cases over the past several years and has been generous in providing protection for employees," Georgetown Law Center Professor Michael Gottesman said in a recent press briefing.

Some analysts suggest that the change in personnel at the high court may have eroded support for O'Connor's expansive reading of Title IX. Some are optimistic that the high court will uphold the former justice's pragmatic approach to civil rights laws.

"These are statutes that are supposed to work for real people," says Jocelyn Frye, general counsel of the National Partnership for Women and Families. "We don't want the justices to distort the laws to a level of abstraction so they become unworkable."

Ms. Frye adds, "Many of us have grave concerns about the two newest additions to the court," referring to Mr. Roberts and Mr. Alito.

Others are urging the court to move away from O'Connor's expansive reading of civil rights laws. In the Cracker Barrel case, the employee filed suit under Section 1981 of the federal civil rights laws.

"Section 1981 does not contain a retaliation provision," says Rae Vann, general counsel of the Equal Employment Advisory Council, who authored a friend-of-the-court brief in the Cracker Barrel case. "If you look at other federal employment non-discrimination laws like Title VII, the Americans With Disabilities Act, and the Age Discrimination in Employment Act, there are specific statutory provisions that speak to a prohibition against retaliation."

"What Title VII does in addition to prohibiting discrimination on the basis of race, it also prohibits retaliation," she said during a recent telephone press briefing. "There is no companion provision under Section 1981."

Ms. Vann's Equal Employment Advisory Council is a nonprofit association that represents major corporations in employment matters.

"Our position is that it is inappropriate [for the justices] to read into a statutory provision language that simply does not exist" in the statute, she says.

If Congress wants to extend protection to employees against retaliation across the full array of federal civil rights laws, Congress itself should take that action, she says, it should not be done by the Supreme Court.

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