New Exposure to Employee Retaliation?

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq., owner of Ask The Business Lawyer, is an award-winning business attorney, speaker, and Entrepreneur Magazine online contributor. She saves consulting and professional services companies time, money, and aggravation by serving as their outsourced legal counsel.

Posted on May 21, 2015 in Disputes, Employee Issues

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It probably passed unnoticed by most people, but the Supreme Court handed down a decision recently that raised more than just a few eyebrows in the legal community.

In the case of CBOCS West v. Humphries, a black manager at a Cracker Barrel restaurant filed suit under the Civil Rights Act of 1866 (now codified at 42 U.S.C. Section 1981), alleging he was fired after complaining about discrimination against other black mid-level managers. Whereas some civil rights statutes explicitly prohibit retaliating against an employee who is trying to assert his or her rights, Section 1981 was silent. It prohibits discrimintation on the grounds of race in making contracts, but says nothing about retaliation as a prohibited form of discrimination. So the narrow question before the court was: “Can someone bring a race retaliation claim using Section 1981?” The court’s answer was yes (by a 7-2 margin).

The result is surprising for a couple of reasons. First, it seems to run counter to the increasingly conservative trend of court decisions. In fact, just last year in Ledbetter v. Goodyear, the court faced an employee complaint of discrimination. The plaintiff employee had 180 days to bring a claim of sex discrimination to the Equal Employment Opportunity Commission. She claimed that there was a repeated pattern of unfair evaluations and (lesser) pay raises that existed for a period of time. However, since many of them predated the 180-day period, the court held that she could no longer base a claim on them. Based on that strict reading of the statute, civil rights activists were concerned about the decision-making trend of the court. The Humphries decision takes a much more liberal approach.

The second reason it’s surprising (sort of in line with the first) is that the majority decision seemed to weigh the legislative history of the Civil Rights Act and similar statutes more heavily than case precedent. Sure, the court found cases on which to hang its collective hat. But the approach taken to arrive at the decision was not one normally associated with a conservative court, which would tend to look at the strict language of the law: “Does the language specifically allow a claim? No. If that’s the case, it’s for Congress to pass a law amending it, not for the court to imply a right of action.” Rather, the majority decision took the position that it is presumed that federal civil rights statutes prohibit retaliation whether they say so explicitly or not. See the wiki on the U.S. Supreme Court for a cogent analysis of the history of the case and the arguments before the court.

In practical terms, what does this mean for employers? Quite possibly, that they’ll see a rise in retaliation claims. An effective way to prevent them is to ensure that your company has an employee manual outlining the appropriate procedures for airing grievances and proper training for managers in dealing with these kinds of claims.

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