Update 5/27/08 6:49 pm: Nina Totenburg’s story (I am quoted at the tail-end)
The plaintiffs’ bar has done alright for itself so far this term in the Supreme Court: a positive decision in Federal Express Corporation v. Paul Holowecki, No. 06-1322 (U.S. Feb. 27, 2008), heading off the worst in Sprint/United Management Company v. Mendelsohn, No. 06-1221 (U.S. Feb. 26, 2008). And now we have two more pro-employee decisions today — Gomez-Perez v. Potter, No. 06-1321 (U.S. May 27, 2008), and CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. May 27, 2008) (opinions attached below).
I confess to happy surprise over today’s majority opinions, not least about Justice Alito’s authorship of Gomez-Perez (and Justice Kennedy’s silent assent to both). Considering the firestorm kicked off three terms ago in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) — a bitterly-fought 5-4 decision finding a private right of action for retaliation under Title IX — and the intervening change in the Court’s make-up, I expected an equally tough fight after the Court decided to accept not one, but two retaliation cases raising the same issue. Instead, we get calm reassurance from the majority and mere annoyance by the unreconciled dissenters (Justices Scaliand Thomas, joined by Chief Justice Roberts on the Gomez-Perez case).
Gomez-Perez, which seemed the tought of the two cases, involved the ADEA section for federal-sector employees (29 U.S.C. § 633a), which provides relief for age discrimination but omits any mention of retaliation. The First Circuit held that the omission was fatal to the employee’s claim that she was harassed, ostracized and denied overtime after filing an age-discrimination complaint against the Postal Service. The majority found, though, that the statutory language “discrimination based on age” incorporated by implication claims of retaliation. It so found based on the stare decisis force of Jackson and Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (implying retaliation under section 1982):
“Following the reasoning of Sullivan and Jackson, we interpret the ADEA federal-sector provision’s prohibition of ‘discrimination based on age’ as likewise proscribing retaliation. The statutory language at issue here (‘discrimination based on age’) is not materially different from the language at issue in Jackson (‘ ‘discrimination’ ‘ ‘ ‘on the basis of sex’ 😉 and is the functional equivalent of the language at issue in Sullivan, see Jackson, supra, at 177 (describing Sullivan as involving ‘discrimination on the basis of race’). And the context in which the statutory language appears is the same in all three cases; that is, all three cases involve remedial provisions aimed at prohibiting discrimination.”
Justice Alito even tweaks the government’s defense of the First Circuit’s decision, finding that it does not square with its amicus support of the respondent-employee in CBOCS West Inc. v. Humphries: “Similarly, in another case this Term, the Government has urged us to follow the reasoning of Sullivan and to hold that a claim of retaliation may be brought under Rev. Stat. §1977, 42 U.S.C. §1981. In that case, the Government argues that §1981’s prohibition of ‘ ‘discrimination’ . . . quite naturally includes discrimination on account of having complained about discrimination.’ ” (Thus assuring that the SG’s office will think harder next time before it files a brief in favor of an employment-discrimination plaintiff.)
The majority also knocks down the auxiliary arguments intended to sidetrack this case from its predecessors: (1) that as an express (instead of implied) cause of action, the Court was required to hew closer to section 633a’s literal terms; (2) the existence of an express right against retaliation in 29 U.S.C. § 623(d) for private-sector employees; and (3) the overlay of sovereign immunity and the availability of other remedies for federal employees in civil service. One useful tidbit for future cases is Justice Alito’s enlistment of a generous rule of statutory construction in light of the statutory purpose : “it would be perverse if the enactment of a provision explicitly creating a private right of action-a provision that, if anything, would tend to suggest that Congress perceived a need for a strong remedy-were taken as a justification for narrowing the scope of the underlying prohibition.”
Humphries, meanwhile, had the momentum of history behind it, bearing a strong parallel to Sullivan. The 7-2 decision, signed by Justice Breyer, relied heavily on that precedent and the Reconstruction-era (omitting case citations):
“[T]he Court has construed §§1981 and 1982 alike because it has recognized the sister statutes’ common language, origin, and purposes. Like §1981, §1982 traces its origin to §1 of the Civil Rights Act of 1866, 14 Stat. 27. Like §1981, §1982 represents an immediately post-Civil War legislative effort to guarantee the n newly freed slaves the same legal rights that other citizens enjoy. Like §1981, §1982 uses broad language that says ‘[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens . . . .’ Indeed, §1982 differs from §1981 only in that it refers, not to the ‘right . . . to make and enforce contracts,’ 42 U. S. C. §1981(a), but to the ‘right . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,’ §1982.”
There was also the ill-fated Patterson v. McLean Credit Union, 491 U. S. 164 (1988), encounter, in which the Supreme Court had (5-4) restricted the section 1981 cause of action to pre-formation contract claims. When Congress slammed down hard (with the 1991 Civil Rights Act), the Court observed that a consensus formed around the circuits that the amended act provided a claim for retaliation. Thus, given everything that transpired, “CBOCS’ several arguments, taken separately or together, cannot justify a departure from what we have just described as the well-embedded interpretation of §1981.”
So good result for private- and public-sector plaintiffs today.