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Retaliation cases have become significant — both for the workplace and for the Supreme Court. This term alone, the Court is hearing several retaliation cases — including two with oral arguments this week — with important consequences for victimized employees and for the effectiveness of anti-discrimination laws. Retaliation cases arise after an employee files a formal charge or makes an informal complaint to a supervisor regarding perceived discrimination. They also occur when an employee participates in the investigation of a co-employee’s discrimination complaint. Some employers view the employee’s actions as unfounded and take adverse action — such as a discharge, demotion, reprimand, or transfer with significantly fewer responsibilities. This situation has become quite common in employment discrimination pleadings across the country, as employees contend they have been punished for opposing allegedly discriminatory practices or for participating in another employee’s discrimination proceedings. The numbers reflect this reality. Every fiscal year since 2001, the Equal Employment Opportunity Commission has received more than 22,000 retaliation charges. And “retaliation is the most widely perceived basis of unlawful discrimination in the federal workplace today,” said Donald Names, director of special staff services in the EEOC’s Office of Federal Operations, in The Federal EEO Advisor last April. One fact critical to understanding the retaliation numbers is that an employee does not have to win an underlying claim of discrimination to win a retaliation claim. Case reporters are filled with decisions where an employee loses her discrimination claim on summary judgment but survives summary judgment on her retaliation claim. MATERIALLY ADVERSE This term is not the first that retaliation played a noticeable role in the Court’s docket. In Burlington Northern and Santa Fe Railway Co. v. White (2006), the Court issued a somewhat employee-friendly opinion when it unanimously ruled that Title VII’s anti-retaliation provision “extends beyond workplace-related or employment-related retaliatory acts and harm” and that it covers “materially adverse” employment actions. The Court determined that an employer could commit unlawful retaliation in a variety of ways, including those that did not directly involve the employment relationship. “A provision limited to employment-related actions would not deter the many forms that effective retaliation can take,” Justice Stephen Breyer wrote for the Court. He noted that “context matters” in retaliation cases because “the significance of any given act of retaliation will often depend upon the particular circumstances.” The decision helped employees in courts such as the U.S. Court of Appeals for the 5th Circuit, which had previously taken a very pro-employer view in holding that only “ultimate employment decisions” (i.e., discharges) could be actionable. NOW AT THE COURT This term the Court will hear several cases involving issues that have divided the lower courts. These cases include the following: • Gomez-Perez v. Potter, with oral argument taking place on Tuesday, addresses whether the federal-sector provision of the Age Discrimination in Employment Act prohibits retaliation when the statutory language prohibits “any discrimination” but fails to include the word “retaliation.” • CBOCS West v. Humphries, with oral argument on Wednesday, addresses whether an individual can bring a retaliation claim under 42 U.S.C. �1981. • Crawford v. Metropolitan Government of Nashville (oral argument not yet scheduled) addresses whether Title VII’s anti-retaliation provision protects an employee who participated in an employer’s internal investigation into a supervisor’s alleged sexual harassment that did not lead to a formal EEOC charge. In Gomez-Perez v. Potter, a 45-year-old employee filed suit under the federal-sector provision of the ADEA, 29 U.S.C. �633a, which, in pertinent part, provides: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age .�.�. shall be made free from any discrimination based on age.” This differs from the section of the ADEA for the private sector, 29 U.S.C. �623(d), which specifically contains an anti-retaliation provision. In rejecting the employee’s position that the ADEA’s federal-sector provision prohibits retaliation, the 1st Circuit focused on the absence of the words “retaliate” or “retaliation” in the statute. It reasoned: “The clear difference between a cause of action for discrimination and a cause of action for retaliation leads to the conclusion that if Congress had meant to provide for both causes of action, it would have said so explicitly in �633a.” That holding conflicted with the D.C. Circuit, which in 2001 explained: “It is difficult to imagine how a workplace could be �free from any discrimination based on age’ if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee. To treat Congress’s mandate as other than comprehensive would produce absurd results, which courts are to avoid.” The Court presumably will address the applicability (and perhaps continued viability) of Jackson v. Birmingham Board of Education (2005), which found retaliation protection under Title IX even though the statute did not contain a specific anti-retaliation provision. Three of the four dissenters in Jackson are still on the Court — Justices Clarence Thomas, Antonin Scalia, and Anthony Kennedy. Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. could join those three for a majority against the plaintiff. Assuming Roberts votes similarly to former Chief Justice William Rehnquist, the determinative vote could fall to Alito, who replaced Justice Sandra Day O’Connor — the author of the Court’s majority opinion in Jackson. If it does, this outcome probably would not be novel. In the First Amendment employment arena, the replacement of O’Connor with Alito likely proved determinative in the Court’s oft-criticized decision in Garcetti v. Ceballos (2006), a twice-argued decision that created an additional hurdle for public employees alleging First Amendment-based retaliation claims. The Court’s treatment of Jackson also will prove important in CBOCS West v. Humphries, where a former employee of Cracker Barrel alleged he experienced retaliation as a result of complaining about a supervisor’s racial harassment. Humphries contends that Section 1981, which bans intentional racial discrimination in the making and enforcing of contracts, encompasses a claim for race-based retaliation — an argument accepted by the 7th Circuit. The issue is vital to many plaintiffs because Section 1981 does not have the same limitations in damages and filing requirements as Title VII does. INTERNAL OPPOSITION In a later retaliation case this term, the Court’s decision in Crawford v. Metropolitan Government of Nashville will prove vital to the large number of employees covered by Title VII’s anti-retaliation provision. This provision contains an “opposition clause” and a “participation clause.” The opposition clause protects employees who oppose unlawful employment practices (or practices they reasonably and in good faith believe are unlawful). The participation clause protects employees who testify, assist, or participate “in any manner” in a Title VII proceeding. Vicky Crawford — an employee of the defendant for 30 years — alleged she was discharged for participating in an internal investigation into alleged sexual harassment by a supervisor. The problem in the lower courts, including in the 6th Circuit, was that there was no “overt opposition” sufficient to trigger the opposition clause and there was no “participation” because no EEOC charge had been filed. In its unpublished Crawford decision, the 6th Circuit quoted approvingly from EEOC v. Total System Services (11th Cir. 2000), which found that the participation clause did not cover an employer’s in-house investigation that did not lead to formal EEOC charges. It is rare for the Supreme Court to grant review from an unpublished lower court decision, but the United States filed an amicus brief urging the Court to hear the case. The solicitor general writes that the 6th Circuit’s decision in Crawford “creates an inexplicable enforcement gap in Title VII for employees in the Sixth Circuit.” The solicitor general also argues that the ruling threatens to compromise employer investigations by removing a protection designed to ensure that employees will not fear reprisals for cooperating. AN AWFUL RESULT Protection from retaliation is an important part of Title VII and other anti-discrimination laws. If no such protection existed, many employees would be deterred from ever opposing unlawful acts or participating in other employees’ claims. The 6th Circuit’s decision in Crawford leads to an awful result. Without such protection, employees can be punished if they are summoned to talk to an internal investigator and then say something that reflects poorly on a higher-ranking employee. The increasing number of retaliation claims and the many divisions in the lower courts regarding various aspects of retaliation claims will give the Court many opportunities to offer much-needed guidance in this area. As the Court addresses these issues, let us hope that it will recognize the vital importance of protecting employees from retaliation — and rule accordingly.
David L. Hudson Jr. is a First Amendment scholar for the First Amendment Center at Vanderbilt University in Nashville, Tenn. He wrote The Rehnquist Court: Understanding Its Impact and Legacy (2006) and The Handy Supreme Court Answer Book (2008). Lawrence D. Rosenthal is a professor of legal writing and in July will become associate dean of academic affairs at Northern Kentucky University’s Salmon P. Chase College of Law in Highland Heights, Ky. He has published several articles on employment discrimination law.

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