Supreme Court Hears Arguments in Discrimination Case

MARCIA COYLE: Exactly. Cracker Barrel's attorney told the court first you have to start with the text of the law. There is nothing in this law that says retaliation, nothing in the law from which you can infer that there is a claim for retaliation.

Second, the lawyer said, this law prohibits discrimination on the basis of race, your status. If you complain about discrimination and you get fired, you're not being fired on the basis of your race, but because you complained.

RAY SUAREZ: And what did the justices make of that line of argument?

MARCIA COYLE: Well, the justices appeared -- some of the justices appeared to fall into two different and competing camps. There are those justices who say, yes, you've got to look at the text of this statute. It says nothing.

Congress has been explicit in other civil rights laws when it wants to have a retaliation claim. We're not going to imply or infer a new cause of action; we don't do that anymore. We did that a long time ago, but we don't do it.

But then there are other justices who look at the history of this particular statute, as well as recent amendments in 1991 -- Congress did amend this statute -- and they say that that points to the fact that retaliation was always considered part of the protection under this particular civil rights statute.

RAY SUAREZ: And how did the lawyers for Hendrick Humphries respond to Cracker Barrel's line of argument? And I should say the Bush administration was on their side today.

MARCIA COYLE: Absolutely. In fact, they had some time -- they shared argument with Mr. Humphries' attorney.

Mr. Humphries' attorney pointed out this. Well, what kinds of rights would you have under this particular statute to be free from discrimination, racial discrimination, in the making and enforcing of contracts if an employer could fire you whenever you complained about discrimination in the making and enforcing of contracts? It doesn't make any sense that you would have this right without the remedy of retaliation claim.

She also argued, as did the Bush administration, that lower federal courts and Congress for many, many years had believed that retaliation was part of this statute's protections.

This was a Reconstruction-era statute. And the Congress at the time was concerned about reprisals against African-Americans who were asserting their new -- freed African-Americans who were asserting their rights under this statute.

RAY SUAREZ: Well, in the last session, the recently reconstituted Supreme Court made it much harder for a woman to sue her employer on basis of discrimination over gender in pay.

MARCIA COYLE: That's correct.

RAY SUAREZ: Have the justices been trending toward deciding on the side of business lately?

MARCIA COYLE: Well, this is why this case I think, Ray, is so interesting and so important. It was only two terms ago that the court, by a 5-4 decision, found or implied a claim for retaliation under another civil rights law, Title IX of the education amendments.

There, the difference was Justice Sandra Day O'Connor. She found that a complaint about sex discrimination involving a female basketball team included a claim for retaliation.

This is a different court. Justice O'Connor is gone. As you pointed out, just recently the court made it more difficult to sue.

MARCIA COYLE: OK. You could sort of call this federal preemption day at the Supreme Court. The court issued a series of decisions that essentially asked the court to decide whether federal law trumps state law in different areas of regulation.

The case you just mentioned, Medtronic is a company that made a catheter. And that catheter went through the Food and Drug Administration's pre-market approval process, which is a process designed to look at the safety and the effectiveness of the product before it goes out on the market.

It passed that, went out on the market. It was used in heart surgery on Charles Riegel. During heart surgery, the catheter burst. He suffered serious injuries. He later brought a state tort suit claiming negligence, defective design of the catheter, inadequate warning labels.

The court today said that the federal law governing the regulation of this particular type of medical device trumps state law and state tort suits, such as Mr. Riegel's.

It's a very important case. We don't know yet how far the court will go in terms of federal preemption of state tort suits or state law requirements in other areas, such as their requirements for drug safety. The court does have a case coming up on that, as well.

RAY SUAREZ: And the bottom line in one of these other cases involving shipping companies and tobacco in the state of Maine?

MARCIA COYLE: Once again, the state of Maine was trying to regulate -- actually trying to prohibit tobacco, cigarettes getting into the hands of minors, so it enacted two laws on trucking companies.

Congress deregulated the trucking industry in the '90s and had a preemption provision saying states can't do certain things that would interfere with this. The court today said that there was no exception under that provision for a state law that attempts to provide for the public health of its citizens.

RAY SUAREZ: Marcia Coyle, thanks for joining us.