RAY SUAREZ: Now, what happens when an employee claims discrimination and the employer retaliates? Those workplace issues were at the heart of two Supreme Court rulings today, both decided in favor of the employee.
Here to walk us through them is NewsHour regular Marcia Coyle of the National Law Journal.
And, Marcia, at issue were race-based discrimination and age-based discrimination. Let’s take a look at the race-based case first.
MARCIA COYLE, National Law Journal: OK. This case involved the Civil Rights Act of 1866 and a provision in that act that prohibits race discrimination in the making and enforcing of contracts, employment contracts, non-employment contracts.
The case came before the court arising from a suit brought by Hedrick Humphries, who was an assistant manager at a Cracker Barrel restaurant in Illinois. He had received excellent reviews and bonuses for his performance there until a new manager came on board.
That manager, according to Mr. Humphries, made racially derogatory comments to Mr. Humphries and other African-American employees. He complained. Ultimately, he was fired by this manager.
The grounds given for the firing was that he left the safe open overnight. He brought his race discrimination suit and a claim for retaliation because he complained of race discrimination.
RAY SUAREZ: And today’s ruling said what?
MARCIA COYLE: The issue before the court was whether this particular provision of that civil rights law allowed retaliation claims to be brought. The provision said nothing about retaliation.
Justice Breyer wrote the majority opinion. It was a 7-2 decision, and he said, basically, this decision rested on the court’s prior decisions in this area, under laws that were very similar to this that had broad bans on discrimination, but were silent as to whether retaliation was covered.
He said retaliation is closely related to the enforcement of the underlying right. Here, if you have a right to be free from race discrimination in the making of contracts, what would happen if you couldn’t complain about retaliation when you exercised that right? It would be a right without any real remedy.
Issue of retaliation
RAY SUAREZ: Now, you'd mentioned this was a 7-2 decision. Who were the dissenters? And what was the rationale behind the dissent?
MARCIA COYLE: Justices Thomas and Scalia dissented. Justice Thomas said that this particular provision in the law was a straightforward ban on race discrimination. He said retaliation is not race discrimination, that this law protects you on the basis of who you are, not on the basis of what you do.
RAY SUAREZ: Now, the other case involved not race, but age. Tell us what was at issue there.
MARCIA COYLE: This was the Age Discrimination in Employment Act. And, again, it involved a specific provision, the federal sector provision that covers federal employees. That provision is also completely silent on whether retaliation claims are permitted, unlike the private-sector provision for private employees, which expressly addresses retaliation.
Here, a clerk for the U.S. Postal Service had sought a transfer to a job. She got closer to where her ill mother was. She got the transfer. But when she wanted to come back to her old, full-time job, she was told it had been downgraded to part-time and was filled by someone who was younger than she.
She filed a grievance, lost. She brought an age-discrimination claim. And, after that, she claimed she was retaliated against by her employer. Her hours were drastically reduced; she was even accused of sexual harassment.
So the court, once again, had to look at the language of the statute. It was silent. In an opinion here by Justice Alito, the court said that, again, based on prior rulings and under laws that had broad antidiscrimination provisions, retaliation was covered.
Civil rights test for new justices
RAY SUAREZ: Now, when the Cracker Barrel case was argued, and you were on the NewsHour, you said you would be watching for how Chief Justice Roberts and Justice Alito voted to get an idea of their interpretation of civil rights law.
MARCIA COYLE: That's correct.
RAY SUAREZ: So what conclusion can you draw from today's ruling?
MARCIA COYLE: Well, I recall that many employment law scholars felt that, with these two new justices on board, that it could make a real difference in the area of retaliation, because Justice Alito, in particular, replaced Sandra Day O'Connor, who had been the key vote in the past in finding retaliation was covered under silent civil rights laws.
Surprisingly to them, I'm sure, Justice Alito was in the majority in both cases and, in fact, wrote the decision in the postal worker's case.
Chief Justice Roberts, he sided with Mr. Humphries in the race case, but he was in dissent on the age discrimination case. And he actually appeared during oral arguments to be headed also against Mr. Humphries, but that, I think, proves the point that you really can't predict on the basis of oral arguments.
It's hard to say what it means for him. I think, in the race case, he was very much persuaded by Justice Breyer's approach of being faithful to prior decisions.
Right to sue more secure
RAY SUAREZ: And very, very briefly, before we go, as a result of these two rulings, do employees who feel they've been discriminated against now have a broader right to sue, a more secure right to sue for redress?
MARCIA COYLE: Definitely a more secure right. And under the Civil Rights Act, the race case, in particular, they get more under that than filing under another avenue, Title VII of the Civil Rights Act.
The 1866 law has no limits on the amount of damages that can be awarded. It also has a longer time frame in which you can bring your retaliation claim. And it applies to all employers, regardless of size.
RAY SUAREZ: Marcia Coyle, thanks for joining us.
MARCIA COYLE: My pleasure, Ray.