Tuesday, June 3, 2008
The May 29 editorial "Flawed Victory," which characterized as "deeply flawed" the recent Supreme Court decisions reaffirming protection against retaliation for age and racial discrimination, ignored language covering federal employees enacted in 1974 that broadly prohibits "any discrimination based on age."
For more than 30 years, this language had been universally interpreted -- by courts as well as by the Equal Employment Opportunity Commission -- to encompass discrimination in response to the filing of an age-related complaint.
The National Treasury Employees Union filed a friend-of-the-court brief in Gomez-Perez v. Potter, the case involving an age discrimination claim by a federal employee. As we pointed out in our brief, and as the court majority recognized, there are compelling reasons to interpret the broadly phrased provisions applicable to federal employees in the same manner as the specific prohibitions applicable to private-sector employees.
Our brief also pointed out the error behind Chief Justice John G. Roberts Jr.'s reliance on the alleged availability of other remedies for retaliation. There are significant gaps in the civil service protections against retaliation, gaps that this decision will close.
If this decision had gone the other way, tens of thousands of federal employees would have been left entirely unprotected from retaliation arising from age discrimination complaints. Without protection from retaliation, the statutory ban on age-based discrimination would be gutted for those federal employees.
COLLEEN M. KELLEY
National President
National Treasury Employees Union
Washington
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The Post was guilty of poor research and faulty logic in charging that the Supreme Court's decision in the Cracker Barrel restaurant case was "deeply flawed" for holding that employees are protected from retaliation for making discrimination claims based on race.
The case stemmed from a Reconstruction-era statute stating that all persons should have the same right "as white persons to make and enforce contracts."
In the 1989 case Patterson v. McLean Credit Union, Brenda Patterson, a black woman, said she was verbally abused on the job because of her race, but a majority of the Supreme Court found that because the Reconstruction statute dealt only with making and enforcing contracts, it could not apply to employment "terms and conditions" such as racially based verbal abuse. Justice William J. Brennan Jr. pointed out in his dissent that, under the majority's interpretation, Mrs. Patterson's rights would have been violated only if she had been told when she was hired that she could have the job on the condition that she be racially abused at work.
Congress acted quickly to remedy the situation. In 1991, it rewrote the law to reverse Patterson. It said the statute covered all benefits, privileges, terms and conditions, and a House report noted that it was designed to restore the previously recognized right to sue for retaliation.
But The Post's editorial did not mention the Patterson decision or its reversal in the 1991 Civil Rights Act. Its entire position rests on the absence of the word "retaliation" from the statute. The editorial does no honor to The Post's former reputation as a newspaper that paid careful attention to the law and was devoted to civil rights.
WILLIAM L. TAYLOR
Chairman
Citizens' Commission on Civil Rights
Washington
The writer helped prepare a friend-of-the-court brief filed in Patterson v. McLean Credit Union . He contributed to a friend-of-the-court brief filed by the Leadership Conference on Civil Rights in CBOCS West v. Humphries.
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