Court OKs suits on retaliation in race, age cases

WASHINGTON -- In a turnabout, business groups are complaining about a Supreme Court that they say has become too friendly to workers.

In two employment decisions Tuesday, conservative and liberal justices joined to make it easier for workers to sue when they face retaliation after complaining about discrimination.

One case involved a private employer, Cracker Barrel, and race. The other focused on a federal worker and age. In both, the court took an expansive view of workers' rights and avoided the narrow, ideology-based decisions that marked its previous term.

"Our batting average this term is pretty bad in labor and employment cases," said U.S. Chamber of Commerce vice president Robin Conrad. She wondered whether the justices, and in particular Chief Justice John Roberts, were reacting to the criticism they faced after ruling against a woman in her pay discrimination case last term.

On Tuesday, the justices read parts of an 1860s civil rights act and the nation's main anti-age bias law to include the right to sue over reprisals, even though neither provision expressly prohibits retaliation.

Justice Stephen Breyer, writing for the court in a case involving a black Cracker Barrel employee who was fired, said that previous Supreme Court decisions and congressional action make clear that retaliation is covered.

The idea that a provision of the Civil Rights Act of 1866, known as section 1981, "encompasses retaliation claims is indeed well-embedded in the law," Breyer said in the 7-2 ruling.

The outcomes contrasted with rulings last term in which conservative majorities insisted on literal readings of federal laws over the objections of liberal dissenters who favored more expansive interpretations.

Justices Samuel Alito and Anthony Kennedy joined their more liberal colleagues in both rulings Tuesday. Indeed, Alito wrote the court's opinion allowing a federal employee to pursue retaliation claims under the Age Discrimination in Employment Act. The vote in that case was 6-3.

Roberts dissented in the age case but was part of the majority in the race retaliation case.

Roberts and Alito "have been so true to the plain language of the statute. I was really surprised," said Karen Harned, executive director of the National Federation of Independent Business Legal Foundation.

Justices Antonin Scalia and Clarence Thomas dissented in both cases. "Retaliation is not discrimination based on race," Thomas wrote in the Cracker Barrel case.

The decisions displayed two emerging trends of the term -- rulings favorable to workers in employment discrimination cases and the absence of 5-4 decisions. There has been only one 5-4 decision so far.

Conrad said she has been puzzled by the court's repeated rulings against employers, particularly after last term's string of victories for business interests.

She said the court may have been stung by the reaction to the 5-4 decision last year against Lilly Ledbetter, a longtime Goodyear Tire & Rubber Co. employee. In an opinion written by Alito, the court threw out Ledbetter's pay discrimination claim because she missed a strict deadline in civil rights law.

William L. Taylor, a veteran civil rights lawyer in Washington, said the Cracker Barrel decision shows that the Roberts court will not engage in "an across-the-board decimation of civil rights ... I think it's cause for at least a small celebration."

The Chamber of Commerce and National Federation of Independent Business argued that the absence of an explicit prohibition on retaliation was significant and said employees should have to file suit under another law, Title VII of the Civil Rights Act of 1964. That law requires prompt notification of the employer, has a shorter deadline for filing suit and caps the amount of money that a successful plaintiff may recover.

The Bush administration was on the side of the workers in the Cracker Barrel case.

The case grew out of the firing of a black associate manager at a Cracker Barrel restaurant in Bradley, Ill. Hedrick Humphries claimed he was fired after he complained about race discrimination by other Cracker Barrel supervisors.

Humphries filed a lawsuit claiming both discrimination and retaliation. Both claims were dismissed by a federal judge and only the retaliation claim was appealed.

The Chicago-based 7th U.S. Circuit Court of Appeals said Humphries could pursue his retaliation claim under section 1981. The high court upheld that ruling.

In the age retaliation case, Alito concluded for the court that a U.S. Postal Service employee may pursue her lawsuit.

The anti-age bias law does specifically bar reprisals against private sector employees who complain about discrimination. But it is silent as to federal workers. Alito said the law applies to both categories of employees.

The case involves Myrna Gomez-Perez, a postal worker in Puerto Rico who alleged she was being discriminated against because of her age. Gomez-Perez, who was then 45, said that after she filed a complaint with the Equal Opportunity Employment Commission, she suffered a "series of reprisals" from her supervisors.

Gomez-Perez sued under the ADEA, claiming retaliation in violation of the law.

The 1st U.S. Circuit Court of Appeals in Boston upheld a lower court's dismissal. The Supreme Court reversed that ruling Tuesday.

The administration, which is backing workers in other age bias cases at the high court, said the ADEA does not afford federal workers protection from retaliation. It said Congress could have extended protections to federal workers, but didn't.

Both decisions relied, in part, on a 2005 ruling that called retaliation another form of intentional, unlawful discrimination under Title IX, which bars sex discrimination in education. Title IX, like the two laws at issue, doesn't explicitly talk about reprisals.

Justice Sandra Day O'Connor wrote that 5-4 decision. She has since retired and been replaced by Alito.

The cases are Gomez-Perez v. Potter, 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.