Protection from Retaliation for Filing Employment Discrimination Claims
By Martha McCarthy, Ph.D.
Assertions that employees are the victims of retaliation for filing discrimination complaints are increasing. The Equal Employment Opportunity Commission recently reported that retaliation claims doubled from 11,000 to 22,000 in the past 15 years. Before or after discrimination suits are settled, aggrieved workers often contend that their employers give them less desirable job assignments, unwarranted reprisals, and other unfavorable treatment. Without protection against retaliation for filing discrimination claims, workers may be reluctant to challenge unlawful employment practices.
In May 2008 the Supreme Court rendered two significant decisions in which it sided with workers who alleged retaliation for filing age and race discrimination claims. One case, CBOCS West, Inc. v. Humphries, involved the Civil Rights Act of 1866 (codified as 42 U.S.C. Section 1981), which bars racial discrimination in making and enforcing contracts. This case was brought by a black associate manager at Cracker Barrel who alleged he was fired after complaining about a white supervisor engaging in race discrimination. The second case, Gomez-Perez v. Potter, involved the Age Discrimination in Employment Act (ADEA), which has no explicit retaliation protection for federal employees, even though it specifically protects workers in the private sector from retaliation for filing discrimination claims. A U.S. postal worker in Puerto Rico alleged she was retaliated against for asserting age discrimination under the ADEA. The Supreme Court in separate decisions ruled that protection against retaliation, although not explicit, is imbedded in both provisions. In short, the Court concluded that the laws’ prohibition of discrimination also shields workers against retaliation for filing claims.
The Court relied heavily on its 1995 decision, Jackson v. Birmingham Board of Education, in which it held that retaliation is another form of intentional discrimination, so retaliation does not have to be explicitly prohibited by federal laws. Jackson involved a retaliation claim under Title IX of the Education Amendments of 1972 that bars sex discrimination in federal programs receiving federal funds and does not directly mention reprisals for retaliation. The Supreme Court ruled that Title IX protected a teacher/coach against retaliation for complaining about sex discrimination in his school’s athletic program.
Several other recent Supreme Court rulings have not been favorable toward employees in terms of protecting their expression that relates to job duties, allowing flexibility in filing pay discrimination claims, and using federal protections to challenge arbitrary actions that are directed toward specific individuals rather than members of a protected group. Thus, these two rulings shielding individuals from retaliation for filing discrimination claims were viewed with relief by many employees, including those working in school districts. It remains to be seen whether such protection against retaliation from their employers will encourage more workers to file employment discrimination claims.#
Martha McCarthy is the Chancellor’s Professor and Chair, Educational Leadership and Policy Studies, Indiana University
