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Court’s retaliation decisions raise questions

Employees who suffered adverse action after complaining about race discrimination have two new potential avenues for redress after yesterday’s Supreme Court decisions in Gomez-Perez v. Potter and CBOCS West v. Humphries.

In Gomez-Perez, the Court held that a federal employee who complains of age discrimination can bring a retaliation claim under the Age Discrimination in Employment Act – an option already available to private sector workers.

In CBOCS West, the Court extended the nation’s oldest civil right act, known as §1981, to protect workers who complain of race discrimination. The Court allowed a §1981 claim by a worker even where he could have filed a claim under Title VII, which gives retaliation protection to employees, but his claim was time-barred.

The reaction to the two decisions was swift, with some questioning whether the pro-employee decisions are a reaction to the string of pro-employer decisions last term.

The ACLU hailed the decisions. “Today’s decisions are appropriately grounded in the realities of the workplace,” said Steven R. Shapiro, National Legal Director of the ACLU said in a statement Tuesday. “Workers who fear retaliation are far less likely to report discrimination. Congress understood as much when it passed laws prohibiting employment discrimination based on race and age. By acknowledging that fact in its decisions today, the Court has protected workers and respected congressional intent.”

But U.S. Chamber of Commerce vice president Robin Conrad told the Associated Press that the Court’s repeated rulings against employers was puzzling, given Court’s pro-employer decisions last term, including  Ledbetter v. Goodyear Tire & Rubber, which was written by Justice Samuel Alito – who authored yesterday’s opinion in Gomez-Perez.

That decision was highly criticized, and a bill to overturn it was introduced – but ultimately defeated – in Congress.

“I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases,” Conrad said.

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