Proving a discrimination claim can be difficult for plaintiffs’ attorneys. Barring a “smoking gun” e-mail or a supervisor so ignorant of the law that he spouts off offensive comments in front of employees, an ulterior motivation for a negative employment action is often hard to establish.

Proving retaliation, on the other hand, can be as simple as pulling out a calendar. An employee complains that her supervisor is biased against her because of her sex, race or age. A short time later, she is terminated, demoted or transferred to a less desirable
shift or assignment. Bingo. That employee alleges that proximity of the employment action to her complaint proves retaliation–even if her original discrimination claim is groundless. And retaliation claims are easy to sell to juries, who recognize the human instinct to take revenge when someone attacks you.

That’s why retaliation claims have soared–up 18 percent between 2006 and 2007, becoming the fastest growing category of discrimination charge filed with the EEOC. And on May 27, the Supreme Court handed the plaintiffs’ bar another avenue for filing retaliation claims that grow out of race discrimination complaints.

The court ruled 7 to 2 in CBOCS West Inc. v. Humphries that plaintiffs may bring claims for race-based retaliation under Section 1981 of the Civil Rights Act of 1866, as well as under Title VII of the Civil Rights Act of 1964.

That’s a big victory for the plaintiffs’ bar for several reasons: The Section 1981 statute of limitations is four years, compared to 180 days under Title VII; plaintiffs can take their case directly to court rather than meeting EEOC filing requirements and waiting for an EEOC review; and claims can be filed against employers with fewer than 15 employees, which are exempt from Title VII claims. And most important to the plaintiffs’ bar: Section 1981 has no cap on compensatory or punitive damages, while Title VII provides caps up to $300,000, depending on the size of the company.

“Section 1981 now provides for retaliation claims with a four-year statute of limitations, no EEOC administrative burden and capless damages–that’s heavy ammunition for plaintiffs’ lawyers,” says Marc Zimmerman, a partner at Phillips Nizer. “It will change the landscape in terms of types of claims that will be advanced.”

Disputed Decision
CBOCS West grew out of a complaint filed by an assistant manager of a Cracker Barrel restaurant in Illinois. Hedrick Humphries alleged that Cracker Barrel’s parent company, CBOCS West Inc., fired him because he is black and because he had complained to managers that another black employee had been fired for race-based reasons.

Humphries filed claims of race discrimination and retaliation under Title VII in federal district court. He also filed the same claims under the Civil War-era statute Section 1981, which assures the rights of blacks to enter into contracts–a right later extended to include employment contracts–but does not mention retaliation.

The district court dismissed Humphries’ Title VII claims because he failed to pay filing fees within the required time frame. It then granted CBOCS’s motion for summary judgment on both Section 1981 claims. On appeal, the 7th Circuit agreed with the district court that Humphries did not have a race discrimination claim, but it rejected the defendant’s argument that Section 1981 does not allow for a claim of retaliation.

In upholding the 7th Circuit, the Supreme Court majority leaned on stare decisis, noting that several other circuits have allowed retaliation claims under the disputed section and that the high court had previously extended a companion law, Section 1982, to include retaliation. Writing for the majority, Justice Stephen Breyer said the fact that the statute does not expressly mention retaliation “is not sufficient to carry the day.” In dissent, Justice Clarence Thomas scolded his colleagues: “Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the fig leaf of ersatz stare decisis.”

Employee-Friendly Court
Some court observers think the decision was predictable, based on the court’s 2006 ruling in Burlington Northern v. White. That decision expanded what kinds of actions an employee could claim as retaliation–not just firing or demotion, but even a change in job responsibilities or hours. Anything that would dissuade a reasonable worker from filing a discrimination claim is retaliation, the court said.

“Burlington Northern lowered the bar for what is retaliation,” says Russell Adler, a partner at Wolf Block. “CBOCS further reflects the fact that the court is taking a permissive, employee-friendly view toward retaliation.”

Still, some employment defense attorneys had hoped that the conservative court would limit Section 1981 claims to what is written in the U.S. Code.

“[CBOCS] caught some people by surprise because there was an expectation with this court of a return to following the plain language of the statute,” says Michael Hanlon, a partner at Blank Rome. The practical impact, he predicts, will be to further burden a federal court system already swamped with employment cases by allowing plaintiffs to circumvent the Title VII requirement that claims be validated by the EEOC.

“Not all problems should end up in federal court,” Hanlon says. “The EEOC has an investigation and attempted reconciliation process, and that is what is getting lost.”

Vulnerable Employers
Hanlon notes that employers are particularly vulnerable in tough economic times such as these, when they may be forced to reduce staff, wages or benefits. That increases the chance that employees will take out their unhappiness in a claim of discrimination. And disciplining an employee who has already complained–formally or informally–about discriminatory treatment opens the door to a retaliation claim.

Employers can lower their risk of retaliation litigation with clearly written policies that include a complaint procedure and training to ensure supervisors understand how to handle complaints and avoid actions that could be construed as retaliation, says Abigail Crouse, a partner at Gray Plant Mooty. Employers should be welcoming of complaints, she adds, to mitigate the perception that employees will be punished for bringing them.

“When an employee brings a complaint, say ‘thank you,’” she says. Zimmerman adds that consistent documentation of an employee’s problems over time, along with unsatisfactory performance reviews that predate a discrimination complaint, provide a strong defense. And employers must beware of taking precipitous action following a discrimination complaint.
“Avoid the itchy trigger finger,” Zimmerman says. “There is no bright line test to determine how much time must elapse between a complaint and an employment action, but the longer the better. In defending retaliation cases, an employer’s major ally is time.”