As with other U.S. Supreme Court cases this term, there’s been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of when it is illegal for an employer to retaliate against an employee for complaining about discrimination. For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.
I’ll leave it to others, such as Ross’s Employment Law Blog to explain the cases.
- In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint. ADEA already prohibits retaliation by private employers. Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
- In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts…") provides a cause of action for retaliation as well. However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims.
Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case." Unless the decision’s rationale is broad, that seems to be an overstatement at this point. Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981. Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations. Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline. Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.
For employers in Connecticut, I would ignore the hype about these cases. Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4). Regardless of how the Supreme Court decides, state law will continue to apply. If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don’t worry about whether federal or state law will ultimately apply.