Employer retaliation cases reach U.S. Supreme Court

When can workers sue against acts of retaliation by employers? Two cases slated for hearing this week may help clarify.

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?

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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