Supreme Court Recognizes 2 New Retaliation Claims

The U.S. Supreme Court has ruled in separate decisions that retaliation is prohibited under two federal discrimination statutes that don’t clearly say so — 42 U.S.C. § 1981 and the federal-sector provisions of the Age Discrimination in Employment Act (ADEA).

CBOCS West, Inc. v. Humphries
In the first case, a Cracker Barrel assistant manager sued the employer for discrimination and retaliation under 42 U.S.C. § 1981, a post-Civil War era law that prohibits race discrimination in the making and enforcement of contracts. The employee’s retaliation claim was based on retaliatory actions he allegedly suffered after complaining that another employee had been subjected to race discrimination.

Section 1981 has long been applied in the employment context. However, in 1989, the Court held that it didn’t prohibit or provide a claim for most types of race discrimination that occur after the commencement of an employment relationship — including retaliation.

Congress took issue with that narrow interpretation of the law. In the Civil Rights Act of 1991, it redefined Section 1981 to prohibit discrimination in “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Whether that definition was broad enough to prohibit retaliation against employees who allege a violation of or assert rights under the law remained unsettled until now. The Court’s ruling makes clear that Section 1981 encompasses retaliation claims.

Gomez-Perez v. Potter, Postmaster General
In the second case, a window clerk for the U.S. Postal Service claimed that she suffered retaliatory harassment after filing an age discrimination complaint. The ADEA has separate provisions that apply to federal employers. Unlike the general age discrimination provisions that apply to private employers, the provisions applicable to federal employers don’t specifically prohibit retaliation. In spite of that fact, the Court concluded that the ADEA prohibits retaliation in the federal sector.

These decisions highlight how careful you must be any time an employee complains about workplace discrimination. Most employment laws specifically prohibit retaliation, but even those that don’t will probably be interpreted to do so.

We will provide more on these important Supreme Court rulings in an upcoming issue of your Employment Law Letter.