Supreme Court shows interest in employment discrimination cases

By Robert Barnes
Washington Post staff Writer
Sunday, November 14, 2010; 11:57 PM

Vincent Staub convinced a jury that his supervisors at a hospital got him fired because they were tired of his Army reserve duties taking too much of his time.

Kevin Kasten said the plastics company he worked for got rid of him for complaining that the time clock had been illegally placed in an inconvenient spot for workers.

And Eric Thompson said his pink slip came not from anything he did wrong. He said the company where he worked along with his fiancee was looking for a way to punish her for filing a sex discrimination complaint.

All three men are before the Supreme Court, seeking to expand the ways workers are protected from employers after they - or someone close to them, in Thompson's case - have done something to rile the bosses.

Analysts debate whether the court under Chief Justice John G. Roberts Jr. has become more "pro-business" than its predecessor. Justice Stephen G. Breyer recently said he didn't think so - the court is always friendly to business, he said - while the liberal Constitutional Accountability Center released a study that begged to disagree.

The Chamber of Commerce does have an enviable record at the high court. But Robin Conrad, executive vice president for the chamber's National Chamber Litigation Center, noted this fall that one smudge was in the field of employment law, especially in retaliation cases.

Others agree. Kevin Russell, a Washington lawyer who argues such cases before the court, noted that federal statutes are filled with protections for workers who complain about unlawful practices of their employers, and the court is making sure that the laws remain viable.

"It is a reasonable assumption that Congress intends for them to work," Russell said. "There really isn't a 'pro-retaliation' side. "

Eric Schnapper, a University of Washington law professor, has made the field a specialty. He will represent employees in three cases this term, including one that raises First Amendment issues.

"I think the court keeps a weather eye out for retaliation cases," Schnapper said. "The court sees these as a real threat."

Schnapper, who worked for years as a lawyer for the NAACP Legal Defense and Educational Fund, said he can take the cases pro bono because of support from his law school. And he said there is plenty of work, partly because the protection for workers is spread across so many federal acts.

Staub, for instance, said his termination violates provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994, designed to protect service members from being fired for reasons related to their military service.

His case, which was argued Nov. 2, raises the issue of whether a company can be held liable when the person responsible for the firing had no discriminatory intent but was influenced by others in the chain of command who did. The court took up the issue before, but the case was settled before the justices could rule.

Thompson, meanwhile, is suing under Title VII of the Civil Rights Act. But he notes in his brief that lower courts have dealt with the issue of third-party reprisals under the National Labor Relations Act, the Age Discrimination in Employment Act, the Equal Pay Act and the Federal Mine Safety and Health Act, among others.

He alleges that when Miriam Regalado - then his fiancee and now his wife - filed a complaint against their employer, American Stainless, the company knew it couldn't legally take action against her. But within weeks, he was let go.

The Equal Employment Opportunity Commission said Thompson could pursue a lawuit. Eventually, a panel of the U.S. Court of Appeals for the 6th Circuit agreed.

But the full appeals court heard the case and agreed with American Stainless that only the person who had filed a complaint against a company - in this case, Regalado - was protected from retaliation. The company said its reasons for firing Thompson had nothing to do with Regalado.

Employees have not won everything at the court. In Gross v. FBL Financial Services , the justices made it harder for some alleging age discrimination to pursue their cases. And the employment case the Roberts court is most known for is Ledbetter v. Goodyear , where it ruled 5 to 4 that tire-plant manager Lilly Ledbetter had waited too long to sue her bosses for paying her less than her male counterparts.

Justice Ruth Bader Ginsburg loudly protested that decision, and Congress changed the law.

She said in an interview this fall she thinks that the court was affected, too. "I think the court was educated by that. I think the next year in part they made up for what, in my view, was a terrible mistake," Ginsburg said.

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