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WASHINGTON � Job retaliation challenges have arrived en masse at the U.S. Supreme Court as part of the largest onslaught of employment cases on the docket in years. The justices have decided two major retaliation cases in the past three years. This term alone, they have granted review in three cases, two to be argued in February and one � perhaps with the greatest potential impact of the three � as yet unscheduled. The increased number is not surprising given the surge in retaliation charges filed with the Equal Employment Opportunity Commission in the past decade. By the end of fiscal 2006, retaliation charges filed under all civil rights statutes represented nearly 30% of all discrimination charges filed that year. “It was sort of an odd circumstance that the case law had not been very developed under retaliation for many years,” said employment discrimination scholar Michael Selmi of George Washington University Law School. “Attorneys just started to plead it more. Once the case law started developing, courts became more attentive to these claims and that furthered the law as well.” Employers, he added, frequently retaliate against those who file discrimination claims, and, somewhat ironically, they retaliate strongest against the weakest claims, and thus help to make retaliation claims stronger. Employment litigator Paul Mollica of Chicago’s Meites, Mulder, Mollica & Glink agreed, adding, “Practitioners have awoken in last decade to the need to include retaliation in their cases. Fundamentally, juries may or may not agree with you about sex or race discrimination, but every one of them who has ever worked understands retaliation.” Also, the Supreme Court’s last retaliation decision � Burlington Northern v. White, 126 S. Ct. 2405 (2006) � created a lower threshold for proving the adverse action by the employer under the broadest federal job bias statute, Title VII of the Civil Rights Act of 1964, he said. “That may have promoted the filing of more actions.” The three retaliation cases granted review in the current term arise under three different civil rights laws: • CBOCS West v. Humphries, No. 06-1431: Can Hedrick Humphries, a black man fired by his employer, the Cracker Barrel restaurant chain, bring a retaliation claim under 42 U.S.C. 1981, a post-Civil War law prohibiting racial discrimination in the making of contracts? • Gomez-Perez v. Potter, No. 06-1321: Does a federal employee � here Myrna Gomez-Perez � have a retaliation cause of action under the Age Discrimination in Employment Act (ADEA)? • Crawford v. Metropolitan Gov’t of Nashville, No. 06-1595: Does Title VII protect an employee from retaliation for cooperating with an employer’s internal investigation of discrimination complaints against another employee? Section 1981 has no explicit retaliation provision. A 7th U.S. Circuit Court of Appeals panel held that finding a retaliation cause of action was compelled by the Supreme Court’s 2005 decision in Jackson v. Birmingham Bd. of Education, 544 U.S. 167. In Jackson, a 5-4 high court found an implied cause of action for retaliation under Title IX of the Education Amendments of 1972. Jackson, the 2-1 circuit panel said, rejected the view that discrimination and retaliation were separate wrongs. But Cracker Barrel argues that the explicit cause of action for retaliation in Title VII precludes one under Section 1981. Implying such a claim under 1981, it contends, would allow plaintiffs to get around Title VII’s requirements, such as damage caps, exhaustion and filing deadlines. There is legislative history to bolster Humphries’ argument that Section 1981 includes retaliation, said employment law scholar Charles Shanor of Emory University School of Law. And, Shanor added, there was no more language in Title IX than there is in Section 1981, and the justices found an implied cause of action in Title IX. “I suspect there is enough data there that the court probably will reject the employer’s textual argument that 1981 only includes race discrimination and [that] retaliation isn’t based on race but on conduct, the complaining,” he said. The ADEA specifically covers retaliation against private-sector employees, but the statute’s federal-sector provision speaks only to “any discrimination based on age.” Gomez-Perez, also relying on the Jackson decision, argues that retaliation for bringing an age discrimination claim is itself discrimination. But the 1st Circuit, taking a textual approach, said retaliation was not included in the federal-sector provision. “It would be a strange and tragic twist for this court to now discover in a statute enacted at about the same time as Title IX that a broad prohibition of discrimination did not include retaliation,” said Daniel B. Kohrman of AARP Foundation Litigation, an amicus party supporting Gomez-Perez. “It doesn’t square with the history of legal interpretation at that time or with common sense,” Kohrman said. Some employment lawyers suggest that the high court’s review of CBOCS and Gomez-Perez may be a reaction to the closely divided Jackson ruling, and rulings in those two cases will reflect how far Jackson “stretches.” The Crawford challenge is potentially more far-reaching for professionals and employers, said Mollica. The issue is whether an employee’s involvement in an internal investigation of discrimination falls within the “participation” or “opposition” prong of Title VII’s anti-retaliation section. The 6th Circuit held that it fell within neither prong. Most people would say the high court’s newest justices � Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. � will be more employer-oriented in these cases than former Justice Sandra Day O’Connor (who authored Jackson) and even former Chief Justice William H. Rehnquist, Shanor said. “To some extent, it comes down to things not easily characterized as for or against the employer,” Shanor said. “It comes down to what is most compelling � text, history, legislative intent? If you find a textual ambiguity, where do you go to fill it?”

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