This article first appeared in the St. Louis Beacon: May 27, 2008 - The U.S. Supreme Court broadened the legal protection of workers who face retaliation for complaining about discrimination at work. The court ruled that workers who complained about race and age discrimination were protected from reprisals, just as are those who complain about sex discrimination have been protected since a 2005 decision.
The race case -- CBOCS West v. Humphries -- came from Illinois. Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant in Bradley, had received annual merit raises, bonuses and good job evaluations for his first two and one-half years on the job. Then, in the summer of 2001, a new acting general manager, Steve Cardin, took over the Bradley store and, according to the record, "routinely made racially derogatory remarks" in front of Humphries and coworkers. He would say he was there "for the white people" and that he was "going to take care of the white people."
Cardin issued five disciplinary reports against Humphries. Humphries complained to his superior, who took no action. When a black employee was fired for the same conduct as a white employee, Humphries again complained, but superiors took no action. Shortly after making a complaint about the racial conduct, Humphries was fired for supposedly leaving a safe open; Humphries maintained he hadn't.
The legal question was whether a post-Civil War civil rights law - Section 1981 - applied to retaliation even though the text of the law did not specifically say it did. The law says that blacks should be able to make contracts just like whites. Justice Stephen Breyer, writing for a seven-justice majority, said the law did apply to retaliation.
Justice Breyer based the decision on several precedents that view retaliation as a form of discrimination. He noted, for example that the court had ruled in 2005 that retaliation in sex discrimination cases was itself sex discrimination that violated Title IX, the law that prohibits sex discrimination in education. In that case, a male softball coach faced retaliation for complaining that his squad got fewer resources than the boys' baseball team.
Justice Breyer also noted that when the Supreme Court ruled in the early 1980s that Section 1981 only applied to racial discrimination that occurred at the time of the initial employment contract, Congress strongly disagreed. Congress expressed its disagreement by passing a new new civil rights law that covered later discrimination, presumably including retaliation.
Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented from the Cracker Barrel decision. Imagine, Justice Thomas wrote, an employer whose policy is to fire any employee - white or black - who complains about race discrimination. That would not violate Section 1981 because the employer does not deny a black employee the same job rights as white employees. He would fire either race for complaining.
In a separate decision in the case of Gomez-Perez v. Potter , a 6-3 majority said that retaliation for a complaint of age discrimination also was illegal. Chief Justice John Roberts joined Justices Thomas and Scalia in dissenting from an opinion written by Justice Samuel Alito Jr. This is one of the few cases in which President Bush's justices have been on different sides.
The chief justice agreed that laws such as Section 1981 and Title IX can be read to include retaliation as part of discrimination, even if the text of the law doesn't specifically say so. But he noted that the age discrimination law created a specific remedy for retaliation by a private employer, while it did not have a remedy for retaliation by a public employer. Congress must have known what it was doing, so age discrimination by a public employer doesn't include retaliation, he reasoned. For that reason, the postal employee involved in the case should not have won.
Justice Alito, writing for the court, disagreed. He said the chief justice's dissent was based on weak inferences and "unsupported speculation."
William H. Freivogel, a lawyer, heads the journalism school at Southern Illinois University Carbondale.
What do you think?
- Is retaliation for complaining about discrimination the same as discrimination?
- Should the Supreme Court say that retaliation is covered by the law if the text of the statute doesn't say so explicitly?
- What about the male coach of the girls' softball team who suffered reprisals after complaining the girls didn't get the same resources as the boys' baseball team?
- What do you think about Justice Thomas' reasoning that an employer's decision to fire a person who complains about discrimination - whether the person is white or black - isn't discrimination because it is not based on the race of the complainer but the act of complaining