Thursday, May 29, 2008

Retaliation = discrimination

When Congress passes a law that allows people to sue for damages, it tries to be clear about what's illegal and how to remedy the violation in court. Except that sometimes Congress is not clear at all, forcing litigants and judges to figure out what the statute really means. I have handled a number of cases over the years where the courts have to figure out whether Congress intended to allow people to bring certain claims under Federal statutes, and the lawyers and the courts have to review legislative history and other case law to determine true legislative intent. This is never easy. In the context of age discrimination claims filed by Federal employees, the Supreme Court figured out this week that the law implies a right to sue for retaliation.

The case is Gomez-Perez v. Potter, decided on May 27. The Age Discrimination in Employment Act (ADEA) was enacted in 1967. It contains an explicit provision that people can sue in court if the employer retaliated against them for complaining about age discrimination. When Congress amended the ADEA in 1972 to protect Federal employees, it did not include a retaliation provision. What does it all mean when a Federal employee, then, sues in court for ADEA retaliation?

The Supreme Court says that omitting any retaliation provision does not prevent the employee from bringing a retaliation claim in court. The anti-retaliation provision is implied: "The key question in this case is whether the statutory phrase 'discrimination based on age' includes retaliation based on the filing of an age discrimination complaint. We hold that it does."

The Court reached this decision by reviewing other cases interpreting different discrimination laws, which also omitted any explicit retaliation provision. In particular, a case from 1969 involving the law prohibiting discrimination in the sale of real property was silent as to retaliation.

In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), we considered whether a claim of retaliation could be brought under 42 U. S. C. § 1982, which provides that "[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold,and convey real and personal property." While §1982 does not use the phrase "discrimination based on race," that is its plain meaning.

Then in 2005, the Supreme Court interpreted Title IX, which addresses discrimination in public schools, to also prohibit retaliation even though that law says nothing about retaliation. That case was Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). The Court made it clear that "Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination . . . . Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subjected to differential treatment."

Most recently, also on May 27, 2008, the Supreme Court interpreted Section 1981, which prohibits discrimination in the enforcement of contacts, to also prohibit retaliation, even though Section 1981 (which doubles as an employment discrimination law) says nothing about retaliation. That case is CBOCS West v. Humphries, discussed here.

The moral of the story is that Congress sometimes forgets or neglects to outline what is prohibited in the very laws that it sometimes takes years to prepare and enact. The Supreme Court then has to figure out what those laws really mean. And what those laws mean is that retaliation = discrimination. More discussion on this issue at this link.

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