posted on Monday, June 23, 2008 10:12 AM
by
Lou Michels
No Percentage in Paybacks
Recent Supreme Court rulings on retaliation, found here (CBOCS West, Inc. v. Humphries) and here (Gomez-Perez v. Potter), raise real concerns for both private and public sector employers in discrimination cases.
The Humphries case extended the reach of Section 1981 of the Civil Rights Act of 1866 in a major way, allowing anyone who complains about an employer's act of alleged racial discrimination to sue for an adverse employment action. This kind of claim, normally reserved for Title VII cases which have caps on damages and a 300-day administrative statute of limitations, can now be filed up to four years after the adverse employment event. In addition, because Section 1981 claims are not capped on damages, plaintiffs can recover substantially more than the $300,000 punitive cap in place under Title VII.
Practitioners know that retaliation cases are generally easier to prove and harder to defend than a plain race discrimination charge. The case law is replete with situations where a jury rejects the underlying charge of discrimination, but finds that the employer retaliated, even though it did not discriminate. So in situations where a potential race discrimination claim exists, employers have to try tread especially carefully now.
In Potter, the Court continued its habit of expanding retaliation rights even though the statute in question (the Age Discrimination in Employment Act) does not contain a retaliation provision. What's interesting about Potter is that the ADEA expressly provides for a retaliation claim against private employers, but is silent as to such claims against a federal employer. Normally, this would be more than enough evidence of Congressional intent to support a finding that there is no retaliation right for federal employees. However, the Court seems hell-bent on expanding retaliation rights where there are none and did so in this case.
This court's proving not to be nearly as employer friendly on a number of fronts (ERISA, retaliation, disparate impact analysis) as was once hoped. How this will affect the upcoming legislative session, perhaps with a new Chief Executive, remains to be seen.