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Friday, May 30, 2008

A Victory for Victims of Workplace Retaliation

I recently became personally acquainted with what it is like to face retaliation in the workplace. (More details on that coming soon.) So it was heartening, and surprising, to learn of a recent U.S. Supreme Court decision that strengthens protections for workers who face retaliation after making complaints about discrimination.

Most observers probably did not expect a worker-friendly decision from the Roberts Supreme Court. But a combination of conservative and liberal justices gave workers enhanced leeway to sue when they are the victims of retaliation after making discrimination claims.

In two employment cases, one involving race and the other age, the court took an expansive view of workers' rights and avoided the narrow, ideology-based decisions that marked its previous term:

The justices read parts of an 1860s civil rights act and the main anti-age bias law to include the right to sue over reprisals even though neither provision expressly prohibits retaliation.

Justice Stephen Breyer, writing for the court in a case involving a black employee at a Cracker Barrel restaurant who was fired, said that previous Supreme Court decisions and congressional action make clear that retaliation is covered.

The idea that a provision of the Civil Rights Act of 1866, known as section 1981, "encompasses retaliation claims is indeed well-embedded in the law," Breyer said in the 7-2 ruling.

The outcomes contrasted with rulings last term in which conservative majorities insisted on literal readings of federal laws over the objections of liberal dissenters who favored more expansive interpretations.

On Tuesday, Justices Samuel Alito and Anthony Kennedy joined their more liberal colleagues in both rulings. Indeed, Alito wrote the court's opinion allowing a federal employee to pursue retaliation claims under the Age Discrimination in Employment Act. The vote in that case was 6-3.

Here's a shocker: Justices Antonin Scalia and Clarence Thomas dissented in both cases. "Retaliation is not discrimination based on race," Thomas wrote in the Cracker Barrel case.

Wow, that's profound.

Naturally, the U.S. Chamber of Commerce wasn't happy with the outcome.

U.S. Chamber of Commerce vice president Robin Conrad said she has been puzzled by the court's repeated rulings against employers, particularly after last term's string of victories for business interests.

Conrad said Roberts, in particular, may be reacting to the criticism of the court after the 5-4 decision last year against Lilly Ledbetter, a longtime Goodyear Tire & Rubber Co. employee. In an opinion written by Alito, the court threw out Ledbetter's pay discrimination claim because she missed a strict deadline in civil rights law.

"I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases," Conrad said.

Interesting that a Chamber representative would accuse a Bush appointee of making judicial decisions based on perceptions or politics, rather than sound legal reasoning. Maybe the Chamber spent so much money on buying the state courts in Alabama and Mississippi that it didn't have enough left over to buy the entire U.S. Supreme Court.

William L. Taylor, a veteran civil rights lawyer in Washington, said the Cracker Barrel decision shows that the Roberts court will not engage in "an across-the-board decimation of civil rights. . . . I think it's cause for at least a small celebration."

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