Supreme Court backs workers in retaliation

updated 4:18 p.m. ET May 27, 2008

WASHINGTON - An unexpected blend of liberal and conservative Supreme Court justices gave workers more leeway Tuesday to sue when they face retaliation after complaining about discrimination in the workplace.

In two employment cases, one involving race and the other, age, the court took an expansive view of workers' rights and avoided the narrow, ideology-based decisions that marked its previous term.

The justices read parts of an 1860s civil rights act and the 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 employee at a Cracker Barrel restaurant 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.

On Tuesday, Justices Samuel Alito and Anthony Kennedy joined their more liberal colleagues in both rulings. 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.

Chief Justice John 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 also displayed other 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.

U.S. Chamber of Commerce vice president Robin 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.

Conrad said Roberts, in particular, may be reacting to the criticism of the court after 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.

"I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases," Conrad said.

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.

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