May 28, 2008

Supreme Court Decides Two Retaliation Cases -- in Favor of Employees

The Supreme Court issued two decisions in employment cases yesterday, finding in each that an employee could bring a claim of retaliation. In CBOCS West, Inc. v. Humphries, the Court found that an employee could bring a retaliation claim under a Civil War-era statute, 42 U.S.C. 1981, that doesn't expressly prohibit retaliation. (My previous post describes the case and the reasons why Section 1981 is such an important remedy for employees.) And, in Gomez-Perez v. Potter, the Court found that a U.S. Postal Service employee could sue for retaliation under the part of the Age Discrimination in Employment Act that covers federal employees -- again, despite explicit mention of retaliation in the law itself.

Big wins for employees? Yes and no. These two decisions affirm what many people thought was already the law, especially in the CBOCS West case, so employees haven't really gained any ground. On the other hand, employees haven't lost any ground either, which looks a lot like victory in front of this Supreme Court.

Often, the Supreme Court takes a case to resolve a disagreement among the Courts of Appeal. When it takes a case like CBOCS West, in an area where the law seems settled, advocates usually start worrying that the Court is going to shake things up and change the rules. That the Court didn't do so in either of these cases -- and invoked "stare decisis," the legal principle that the Court shouldn't overturn its previous decisions absent exceptional circumstances -- is the real storyline here, and a welcome one for employees and their advocates.

Lisa Guerin