Supreme Court Supports Retaliation Claims

On May 27, 2008, the United States Supreme Court decided two important employment cases. Both cases presented the issue as to whether a statute prohibiting discrimination also encompasses a claim for retaliation without expressly stating so in the statute. The Court answered in the affirmative in both cases.

In Gomez-Perez v. Potter, a postal clerk sued the United States postal Service for retaliation based on the fact that she had filed an age discrimination complaint against the employer. The employee asserted her claim under the Age Discrimination in Employment Act (ADEA). The ADEA creates a cause of action for employees of private employers to sue their employer for retaliation. The ADEA, however, does not expressly create such a right for federal employees. The Court relied on the rationale of prior decisions to decide that the text of the ADEA prohibiting ‘discrimination based on age’ includes retaliation. The Court reasoned that retaliation is a form of discrimination because the employee is being subjected to differential treatment based on the nature of the complaint.

In CBOCS v. Humphries, an African-American manager of a Cracker Barrel restaurant sued his employer for retaliation based on the fact that he had complained about discrimination against other African-American managers. The employee asserted his claim under Section 1981 (a federal statute passed during post-Civil War Reconstruction granting freedom of contract to African Americans). Similar to the ADEA, Section 1981 does not explicitly prohibit retaliation based on claims of discrimination. Again, the Court relied on the rationale of prior decisions and the similarity of Section 1981 to other statues to hold that Section 1981 includes a prohibition against retaliation.

The most certain impact of these two cases on employees is the allowance of retaliation claims for federal employees. Whereas private employees have always enjoyed retaliation claims for age discrimination under the ADEA, it is now certain that federal employees will have the same rights.

However, the less certain impact of these cases is whether the analysis of the Court, reading retaliation claims into language generally prohibiting discrimination, will be applicable to other statutes. If so, retaliation claims may be made available in all instances of prohibited discrimination unless it is expressly provided otherwise in the statute. This is important because retaliation claims are often easier to prove than discrimination for employees. For this reason, retaliation claims represent a large number of employment claims.

Further decisions and interpretation of these decisions will determine whether the scope of employees’ retaliation claims will expand. For the immediate future, these cases create an ADEA retaliation claim for federal employees and indicate the Court’s support of discrimination-related retaliation claims in general.