RAY SUAREZ: Saying, in effect, that you can't sue if you think you've been punished for complaining about what you see is workplace discrimination?
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.I think to wait and see what the two newest justices do here with this case. Will they read this civil rights law broadly or more narrowly?