On March 27, 2008, the Supreme Court released two opinions addressing discriminatory retaliation in the workplace. In the pair of opinions, the Court broadened the scope of potential claims for retaliatory conduct by holding that: (1) employees may bring a private action for discriminatory retaliation under §1981; and (2) the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees who complain of age discrimination.

In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.

As background, §1981 gives “all persons…the same right…to make and enforce contracts…as is enjoyed by white citizens” and applies in the employment context because the employment relationship is often considered contractual in nature. The plaintiff in this case, Hendrick Humphries, claimed that he was fired because he complained to managers that a co-employee was dismissed for race-based reasons. In its appeal brief, the defendant framed the question before the Court simply as: “Is a race retaliation claim cognizable under 42 U.S.C Sec. 1981?” The answer to that question, according to the Supreme Court, is yes. As a result of this decision, employers should be aware that employees now have one more potential claim in their arsenal when it comes to discriminatory or retaliatory treatment. It’s also important to note that retaliation claims under §1981 likely will not be subject to the filing deadlines and limits on damages imposed by Title VII.;

Likewise, in Gomez-Perez v. Potter, the Court held 6-3 that the ADEA prohibits retaliation against a federal employee who complains of age discrimination. The case involved a 45-year-old postal worker who claimed that she was subjected to various forms of retaliation, including a drastic reduction in hours, after she filed an administrative ADEA complaint. Section 633a(a) of the ADEA requires that “all personnel actions affecting [federal] employees…at least 40 years of age…be made free from any discrimination based on age.”

Relying on a rationale similar to that in CBOCS West, the Court settled a split among the circuits by holding that, despite no mention of “retaliation” in the statute’s prohibition of discrimination against federal employees based on age, such retaliation is prohibited. Notably, the Court acknowledged, but ultimately was not persuaded by, the “negative implication” argument – i.e., that §623(d) of the ADEA contains a specific prohibition on retaliation against ADEA complainants in the private sector but §633(a) contains no such provision for federal employees. In response to this argument, the Court noted that the two provisions were neither considered nor enacted simultaneously, thereby greatly diminishing the impact of that argument.

As in CBOCS West, the Court stressed that private rights of action for discrimination encompass rights of action for retaliation as well. Although this decision obviously has the most impact on claims by federal employees, it is further evidence of the Court’s willingness to expand the rights and potential claims of employees in the area of discrimination.