Supreme Court Gives Workers Protection From Retaliation

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The Los Angeles Times

Supreme Court Gives Workers Protection From Retaliation

by
David G. Savage

WASHINGTON - To the surprise of civil rights advocates, the Supreme Court on Tuesday strengthened workplace anti-discrimination laws, ruling that employees who say they were punished for complaining of bias can sue for damages.

In a pair of decisions, the court concluded that claims of retaliation were covered by long-standing civil rights laws, even though this kind of discrimination was not mentioned specifically in the statutes.

The expansion of employee rights stands in contrast to a series of pro-business rulings by the high court last year that limited the rights of workers.

Tuesday's decisions do not amount to a sharp change in the law. Most civil rights laws already protect employees against being punished for complaining of bias based on their race, religion, gender, national origin or age. However, in both cases the court read an older law broadly to give employees additional rights to sue for discrimination.

In the first decision, the court said the nation's oldest civil rights law, passed just after the Civil War, not only gave blacks the same rights as whites to make contracts, but it protected them from being fired for voicing complaints about the mistreatment of other black employees.

The 7-2 ruling clears the way for a former assistant manager at a Cracker Barrel restaurant south of Chicago to take his lawsuit to a jury. He alleged that he was fired after complaining about a white supervisor who made racist comments and about the firing of a black food service worker.

In the second decision, the court said older federal employees who were punished after complaining of age bias could sue the government for retaliation. Government lawyers had argued that these workers were protected by the civil service system and had no right to sue.

Justice Samuel A. Alito Jr. disagreed, and spoke for a 6-3 majority in clearing the way for federal employees to sue if they were victims of on-the-job retaliation. The decision revives a suit filed by a 45-year-old postal clerk from Puerto Rico.

Civil rights and civil liberties advocates said they were pleasantly surprised by the two rulings. Steven R. Shapiro, legal director for the American Civil Liberties Union, said the rulings were "appropriately grounded in the realities of the workplace."

"Workers who fear retaliation are far less likely to report discrimination," he added.

Last year, the court was criticized by liberals for ignoring those realities when it threw out a pay-discrimination suit from Lilly Ledbetter, a female manager from Alabama who had been paid far less than men in the same job. In a 5-4 decision, the court ruled that she had failed to cite recent acts of bias as required by the text of the law.

Robin S. Conrad, a lawyer for the U.S. Chamber of Commerce, said the reaction to that ruling might explain Tuesday's decisions. "I think the court was stung by the reaction to Ledbetter," she said.

She added that Tuesday's ruling could encourage suits against companies based on the 19th century law because it lacked the same time limits for filing complaints and might lead to larger damage awards.

Karen Harned of the National Federation of Independent Business agreed, calling the decisions "extremely disappointing for the small-business community. Retaliation claims will be a boon for trial lawyers."

The case of the former Cracker Barrel employee had prompted worries from civil rights advocates last year when the justices voted to hear the company's appeal. They feared the case would lead to a ruling that further limited legal remedies for bias in the workplace.

The case had already taken an unusual turn. Hedrick Humphries, the former Cracker Barrel assistant manager, was representing himself, and a judge dismissed his claims under the Civil Rights Act of 1964 -- the most commonly used anti-discrimination measure -- because he had failed to pay certain court fees on time.

But Humphries also had cited the Civil Rights Act of 1866 and its provision in the year following that said black people in the United States "shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens."

In the past, this law has come into play in cases where modern civil rights statutes do not apply. In 1976, the court relied on the old statute to give black parents a right to sue white academies that closed their doors to their children because of their race.

At issue then was whether this long-standing right to make contracts free of racial bias also included a right to be protected from bias that arises later.

Lawyers for Cracker Barrel argued that the 19th century law did not refer to retaliation and that its words should not be read to stretch so far.

Justice Stephen G. Breyer cited precedents from the 1960s as well as amendments by Congress in 1991 that said the law should be read broadly as a protection against racial bias. "We hold [the old law] encompasses claims of retaliation," Breyer said in CBOCS West vs. Humphries.

Only Justices Clarence Thomas and Antonin Scalia dissented. "Retaliation is not discrimination based on race," Thomas wrote. "The injury he suffers is not on account of his race; rather, it is the result of his conduct."

The second decision concerned federal employees only. In 1967, Congress made it illegal for private employers to discriminate against workers because of their age, but the provision did not apply to the government. A separate provision said "all personnel actions" involving federal employees "shall be made free from any discrimination based on age."

Myrna Gomez-Perez was 45 when she was denied a transfer and allegedly harassed after complaining of age bias. But a federal judge in Puerto Rico and the U.S. court of appeals in Boston threw out her suit for retaliation, saying the law did not cover such claims.

"The key question in this case is whether the statutory phrase 'discrimination based on age' includes retaliation based on the filing of an age discrimination complaint. We hold that it does," Alito said for the court.

Chief Justice John G. Roberts Jr. dissented, along with Scalia and Thomas. Roberts said the federal civil service rules protected federal workers from retaliation, and, therefore, the anti-age-bias law should not be stretched to include these claims as well.

david.savage@latimes.com

© 2008 The Los Angeles Times

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