Justices Uphold Retaliation Lawsuits
Federal, Private Workers Have Same Protections

By Robert Barnes and William Branigin
Washington Post Staff Writers
Wednesday, May 28, 2008

The Supreme Court said yesterday that workers who claim that they faced retaliation for complaining about racial or age discrimination may sue in federal court, and made clear that federal employees have the same protection as their counterparts in the private sector.

In a pair of decisions that drew support from both liberal and conservative justices, the court said its past decisions compelled the view that federal laws that protect workers from discrimination also protect them from retaliation for filing complaints, even if the words of the statute do not specifically say so.

"It's a huge victory for federal workers, who will enjoy the same protection from retaliation that private-sector employees receive," said Joseph Guerra, who argued the case for postal worker Myrna Gomez-Perez. He said that more than 1 million federal workers are covered by the Age Discrimination in Employment Act (ADEA).

More broadly, the court's decisions brought grudging praise from civil rights groups, which had complained about the court's overwhelmingly pro-business rulings last term, and concern from industry groups.

The liberal People for the American Way said the rulings were "welcome exceptions" to what it called a trend of the court's conservative justices to "undercut the rights of everyday Americans and protect powerful business and government interests."

The National Federation of Independent Business, however, called the decisions "extremely disappointing for the small-business community." Robin Conrad, executive vice president for the litigation arm of the U.S. Chamber of Commerce, said she was "surprised by the margin" in both cases.

In CBOCS West v. Humphries, the justices ruled 7 to 2 that an 1866 civil rights law gave an African American worker who was fired from a Cracker Barrel restaurant the right to pursue his claim of retaliation. Only the court's two most conservative justices, Clarence Thomas and Antonin Scalia, dissented.

In Gomez-Perez v. Potter, Justice Samuel A. Alito Jr. wrote the 6 to 3 opinion that federal workers are protected from retaliation under the ADEA, which Congress approved in 1967. Chief Justice John G. Roberts Jr. joined Thomas and Scalia in dissent in that case.

Conrad wondered whether the court was suffering the "sting of the Ledbetter decision." She was referring to the public criticism and congressional action that resulted from last year's 5 to 4 decision in which the court's strict reading of federal laws kept Lilly Ledbetter from suing her longtime employer, Goodyear Tire and Rubber, for pay discrimination.

In yesterday's cases, the court stood by prior rulings that said legal protection against discrimination carried an implied right to sue for retaliation. Both decisions referred to a 1969 precedent as well as a subsequent 2005 decision written by Justice Sandra Day O'Connor, who was succeeded by Alito in 2006.

Business groups had hoped that the decision to accept the CBOCS case meant the court was ready to reexamine those rulings.

That lawsuit stemmed from the 2001 firing of Hedrick G. Humphries, a black assistant manager of a Cracker Barrel restaurant in Bradley, Ill. He said that he was dismissed after complaining about discriminatory remarks by a supervisor and about the firing of a black waitress for offenses that were tolerated from whites. Soon after Humphries complained to a district manager, a supervisor said that he had left a restaurant safe unlocked overnight and fired him.

Among other claims, Humphries said his dismissal violated provisions of the Reconstruction-era Civil Rights Act of 1866.

In yesterday's opinion by Justice Stephen G. Breyer, the court agreed. Even though reprisals are not specifically addressed in the law, the idea that the act "encompasses retaliation claims is indeed well-embedded," Breyer wrote.

"That being so, considerations of stare decisis strongly support our adherence to that view," he added.

Thomas wrote that the court's opinion "has no basis in the text" of the statute and that retaliation is not the same thing as "discrimination based on race."

In the postal worker's case, Gomez-Perez said that after she filed an age-discrimination complaint against the Postal Service, she was subjected to various forms of retaliation, including false accusations of sexual harassment and drastically reduced work hours.

The ADEA prohibits retaliation against private-sector employees but does not specifically mention such a ban for federal workers.

But Alito wrote that the phrase "discrimination based on age" in the federal-sector provision "includes retaliation based on the filing of an age discrimination complaint."

Echoing Breyer in the other case, he wrote: "We are guided by our prior decisions interpreting similar language in other anti-discrimination statutes."

Roberts disagreed in that case. He said Congress protected federal workers through the civil service process and "did not intend those employees to have a separate judicial remedy for retaliation."

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