Two interesting cases are being argued this week in the Supreme court:
On Tuesday, the Court is scheduled to hear argument in Gomez-Perez v. Potter (06-1321), on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints.
On Wednesday, the Court is scheduled to hear oral argument in CBOCS West v. Humphries (06-1431), on whether employees may bring race retaliation claims under 42 USC 1981.
In Gomez-Perez v. Potter, Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA's private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.
On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit "discrimination and retaliation" when it said merely "discrimination," and held that the ADEA does not include a cause of action for retaliation by federal employers.
In the Humphries case, Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant, alleged that he was fired because he complained about his supervisor's racially discriminatory behavior. Humphries's claims under Title VII were dismissed for procedural deficiencies, but the Seventh Circuit held that Section 1981 authorizes suits where employers retaliate against employees complaining of racial discrimination, and Humphries should be allowed to proceed under that statute.
At the Supreme Court, the company argues that there is disagreement in the lower courts over whether Section 1981 in its amended form includes retaliation in its ban of racial discrimination in contractual relations. The company argues that under a straightforward reading of the statutory text, employer conduct is not actionable under Section 1981 unless it is racially motivated, and noted that a retaliatory termination is based on an employee's conduct (the allegation of racial discrimination), not on the employee's race.
In his opposition brief, Humphries asserted the correctness of the Seventh Circuit ruling and also noted language in the legislative history of the Civil Rights Act of 1991 indicating Congress intended to expand Section 1981's scope to claims of "harassment, discharge, demotion, promotion, transfer, retaliation, and hiring." The brief also disputed that the courts are inconsistently interpreting the amended statute, noting that all eight circuits to address the issue have held that Section 1981 prohibits retaliation.