Flawed Victory

Thursday, May 29, 2008

THE SUPREME COURT pleased workers this week when it ruled in two cases that employees who suffer retaliation after complaining about discrimination may sue under existing civil rights law. Yet both decisions are deeply flawed and should make those applauding the results more than a little nervous.

In a 7 to 2 vote, with Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. in the majority, the court concluded that a 19th-century law crafted to protect the legal rights of newly freed slaves also protected Hedrick G. Humphries, an African American associate manager at Cracker Barrel who complained to his boss, a white man, about the discriminatory treatment of an African American waitress. Mr. Humphries was fired soon after and sued Cracker Barrel under the 1866 law, alleging retaliation.

The law has been understood to protect African Americans from employment discrimination, but it makes no mention of retaliation. How, then, could the court and two of its most conservative justices justify giving Mr. Humphries the right to bring a retaliation lawsuit? Because of stare decisis -- a reluctance to overturn prior decisions of the court. The court in 1969 and again in 2005 inferred into law a prohibition against retaliation, concluding that if people were not protected from retaliation, they would be less likely to report discrimination. This makes sense; it's just not what the law says, as Justices Clarence Thomas and Antonin Scalia pointed out in their dissent. The chief justice, who appeared extremely skeptical of a broad interpretation of the law during oral argument, must have held his nose in deciding to respect established case law in this instance.

In the second case, the court found that the Age Discrimination in Employment Act (ADEA) gives federal employees the right to sue claiming retaliation. The law, passed in 1967, had originally covered only employees in the private sector and included a provision specifically prohibiting retaliation. Congress in the 1970s passed new provisions that extended age discrimination protections to executive branch employees, but lawmakers made no mention of retaliation in that bill.

Yet in a 6 to 3 majority opinion authored by Justice Alito, the court concluded that Congress must have meant to include a ban on retaliation. Justice Alito cited the fact that the law was updated after the court's 1969 decision that read into the 19th-century civil rights law a right to sue for retaliation. Justices Scalia and Thomas joined a dissent by Chief Justice Roberts, which noted that one reason lawmakers may not have included rights to a legal remedy for retaliation was that federal employees already had the right to file retaliation claims through the civil service system.

Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done. And those who today praise the outcome shouldn't be upset if in the future justices read into the law new principles that lead to results they may find less acceptable.

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