Supreme Court Decides Two Retaliation Cases

The Supreme Court issued two important decisions on May 27, 2008, concerning employment-related retaliation claims of which employers need to be aware.

In the first case, CBOCS West, Inc. v. Humphries, a former assistant manager filed suit under 42 U.S.C. §1981 (Section 1981) alleging that he was discharged in retaliation for having complained of race discrimination. By a 7-2 vote, the Supreme Court held that, even though Section 1981 does not explicitly authorize retaliation claims, such claims are actionable under the statute. 

At a minimum, this decision may lead to more Section 1981 retaliation claims that will carry higher potential exposure for employers in a time when retaliation claims are already on the rise. Section 1981 can be attractive for litigants because it does not contain caps on damages, has a four-year statute of limitations, and does not require a claimant first to seek redress with an administrative agency before bringing suit. By contrast, another common basis for retaliation claims, Title VII of the Civil Rights Act of 1964, has caps on compensatory and punitive damages, has a much shorter limitations period, and requires administrative exhaustion.

In the second case, Gomez-Perez v. Potter , a postal worker claimed to have suffered a series of reprisals after complaining about alleged age discrimination. By a 6-3 vote, the Supreme Court ruled that, even though the Age Discrimination in Employment Act (ADEA) expressly allows private sector employees to file retaliation suits and is silent as to federal employees' right to do so, federal employees also may pursue ADEA retaliation claims.

Employers are encouraged to seek counsel for more information on these decisions and on other issues related to retaliation claims. Also, considering the potential exposure employers face with such claims on the rise, in-house training on this developing area of the law is recommended.