U.S. Supreme Court Issues Two Retaliation Decisions

The U.S. Supreme Court is wrapping up its Term. Yesterday, the Court issued two significant decisions regarding retaliation.

In CBOCS West, Inc. v. Humphries, the Court ruled 7-2, that employees may sue for retaliation under 42 U.S.C. section 1981. Section 1981 is a post-Civil War anti-race-discrimination statute that does not require employees to pursue administrative remedies through the Equal Employment Opportunity Commission. However, it substantially overlaps with Title VII of the Civil Rights Act. California employees have the Fair Employment and Housing Act. The main benefit of section 1981 is its longer statute of limitations and the lack of an exhaustion requirement. Justices Thomas and Scalia dissented, noting that section 1981 is an anti-discrimination statute that protects people from conduct based on "who they are" rather than "what they do" (engage in protected activity). The opinion is here.

In Gomez-Perez v. Potter, the court, this time 6-3, held that the section of the Age Discrimination in Employment Act's protecting federal government workers authorizes retaliation claims against the federal government. The opinion is here. Chief Justice Roberts and Justices Scalia and Thomas dissented.