The Supreme Court gives Congress a helping hand

This week, the Supreme Court decided two employment law cases involving the issue of “retaliation.” Retaliation occurs when an employer takes adverse employment against an employee because he or she complained about discrimination or otherwise exercised rights under an anti-discrimination law. The issue in one case was whether a Reconstruction-era statute banning racial discrimination also prohibits retaliation. The Court held by a 7-2 majority (Justices Thomas and Scalia dissenting) that it does. The issue in the other case was whether a law banning age discrimination against federal employees also prohibits retaliation. The Court held that it does. This time the vote was 6-3, with Chief Justice Roberts joining Thomas and Scalia in dissent.

A law against employment discrimination should include protection against retaliation. Otherwise, at least in the absence of some other mechanism providing such protection, the employer may well be able to deter employees from exercising their right to challenge prohibited discrimination by creating the fear that such a challenge will cost them their job (for example). This is more than a hypothetical concern. In my experience, supervisors are fairly prone to strike back at employees who accuse them of misconduct. This is a natural human reaction, far more natural than mistreating employees and applicants based on an irrelevant characteristic such as race or gender (though this too still occurs from time to time).

But the question for the Supreme Court was not whether retaliation should be prohibited but whether Congress, in the two statutes at issue, actually prohibited it. In my view, the Supreme Court got both cases wrong.

Let’s start with the case, CBOCS West v. Humphries, involving the Reconstruction-era statute. That act guarantees all persons “the same right. . .to make and enforce contracts. . .as is enjoyed by white citizens.” Nothing in this language suggests protection against retaliation; the law plainly protects individuals based on who they are, not what they do. It bans discrimination based on race. Retaliation is not discrimination based on race.

What made this a close case was Supreme Court precedent interpreting another Reconstruction-era statute as protecting against retaliation. The majority (in an opinion by Justice Breyer) viewed this precedent as triggering the doctrine of stare decisis. It stated that “considerations of stare decisis strongly support” finding that the old statute in question here provides protection for retaliation. But as Justice Thomas pointed out, CBOCS West is a case of first impression – the Court has never decided whether the particular statute at issue protects individuals from retaliation. While case law on related issues did point in favor of the conclusion reached by the majority, that precedent also involved the misconstruction of plain statutory language. To quote Justice Thomas, “erroneous precedents need not be extended to their logical end, even when dealing with related provisions that normally would be interpreted in lockstep.”

The other case, Gomez-Perez v. Potter – involving retaliation against federal employees who raise claims of age discrimination – is noteworthy in part because Justice Alito wrote the majority opinion and Chief Justice Roberts wrote the dissent. Indeed, it’s interesting to see Alito, vilified by the likes of Senator Kennedy for consistently ruling “against” employees as an appeals court judge, bending over backwards (it seems to me) to infer that Congress conferred rights on employees.

In the age discrimination context, Congress expressly granted a cause of action for retaliation to the employees of private employers. A few years later, when it came time legislate against age discrimination in the federal sector, Congress wrote the statute differently, declining to include a specific provision protecting employees from retaliation. But this did not create a significant gap in employee protection — retaliation in the federal workplace can be, and typically is, addressed through the established civil service system with its comprehensive protection for government workers.

Under these circumstances, the majority would seem to have reached the wrong result in this case. The statutory scheme clearly indicates an absence of a cause of action for retaliation under the federal statute, and that absence is easily explained by the existence of other protection.

These cases, of course, are not big deals in themselves. They do, however, provide further evidence that the four “conservative” Justices do not constitute a monolith, and that claims that the Roberts Court is “hostile” to workers are unfounded. But the real wild-card may prove to be what Justice Thomas calls the “ersatz stare decisis” theory that carried the day (and the Chief Justice) in CBOCS West.

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