Jottings By An Employer's Lawyer

Monday, October 15, 2007

Why You Have to Be Careful When Reading Blogs - Retaliation Claims Not Really in Danger in the Supreme Court

When you have a blog entitled Jottings By an Employer's Lawyer, it is pretty clear that you write with a viewpoint. Nevertheless, I try hard to make sure that what I write is accurate, and separate what is opinion from what actually is. No doubt that in the more than 1500 posts since this blog began five years ago, I have not achieved that goal 100%.

Diversity, Inc. also has a viewpoint, and I am sure most of their posting are accurate, but a recent one, No More Discrimination Lawsuits? Supreme Court May Make It Easier to Retaliate, seems to be unnecessarily off the mark.

The basis for the article is the Supreme Court's granting of certiorari in CBOCS West, Inc. v. Humphries (06-1431) and it links to Ross Runkel's page with his description and links to the key documents.

Here's what the article says about the possible effects of the Supreme Court decision:

Should the Supreme Court side with CBOCS West, it would become easier for companies to retaliate against workers who file discrimination lawsuits. This would discourage many from disclosing illegal discriminatory practices.

While perhaps technically true, when combined with the following statements:

Federal law includes "retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices," according to the U.S. Equal Employment Opportunity Commission (EEOC).

In 2004, the EEOC received 22,740 charges of retaliation discrimination and recouped more than $90 million in monetary benefits.

it vastly overstates the potential significance of the case and I think unfairly castigates the Supreme Court.

A decision in CBOCS would have no impact on retaliation cases under Title VII of the Civil Rights Act of 1964, which are the the types of charges mentioned in the two quoted paragraphs and by far the vast number of retaliation claims brought in discrimination cases.

If the Court finds no retaliation is available under § 1981, it would only impact retaliation cases brought under that statute which is limited to racial claims, and basically parallels Title VII race claims with three key exceptions -- there are no statutory damage caps, a much longer statute of limitations and no administrative prerequisites.

Still the implication that retaliation law in discrimination cases is at grave risk, is a real stretch.

The case is an interesting one however as the Supreme Court will have to deal with the Title IX decision of two years ago authored by Justice O'Connor, where four of the justices felt the majority clearly exceeded the scope of the Congressional mandate to create a retaliation cause of action out of whole cloth. See my discussion at Whistleblowing in the Supreme Court, A Good Day .

I do agree with the writer of the article that it is quite likely that the outcome will be different here given the switch from O'Connor to Alito, but I don't think it is really fair to imply it is because of a hostility to retaliation claims by the present Supreme Court. Especially given that it was the Roberts court, including Justice Alito who wrote the other case which is referenced* in the article as broadening the protection provided by the retaliation provision of Title VII.

Blogs are helpful, but all of them, including this one, should be read carefully to make sure that any particular post is not one that may have missed the mark.

*The article says, "Last June, the Supreme Court enhanced protections for employees on the basis of retaliation under Title XII (sic) of the Civil Rights Act of 1964 ..." I believe that is referring to the Burlington Northern Railway v. White decision of June, 2006. See my post about that decision here.


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