The discrimination case the justices granted on Tuesday, which has attracted almost no notice, could nonetheless produce an important shift in the court’s approach to interpreting statutes. The question is whether a law that bars racial discrimination in business dealings, including employment, also prohibits retaliation against those who complain about discrimination.
Ordinarily, the court grants cases only to resolve conflicting interpretations in the lower courts. But in this instance, every federal appeals court to consider the issue has agreed that the statute does apply to retaliation. For the court to grant a case in the absence of a lower-court conflict — as it did in the case decided in June that invalidated voluntary integration plans in two public school systems — is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda.
The federal law at issue in the new case was originally part of the Reconstruction-era Civil Rights Act of 1866. Known now as Section 1981, it does not mention “retaliation.” Neither do most other anti-discrimination laws. In the past, that has been no barrier to the court in finding that protection against retaliation is inherently part of protection against discrimination.
But support on the court for an approach that goes beyond the margins of the constitutional text has been shrinking. Two years ago, the court ruled 5 to 4 that Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion. It is likely that her successor, Justice Samuel A. Alito Jr., would have been among the dissenters.
Given that the new case, CBOCS West Inc. v. Humphries, No. 06-1431, does not meet the court’s most important criterion for review, it is likely that a new majority granted it in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes.
Retaliation is not explicitly written into the statute, but lower courts (and the Supreme Court in analogous cases) have all agreed that not reading in an anti-retaliation provision doesn't just create a loophole -- it means you don't have a law anymore. In addition to being wildly unjust on its own terms (firing someone for making a non-frivolous complaint of discrimination is one of the more sadistic employment actions I can think of), if employers can simply terminate anyone who complains of discrimination, then it will be essentially impossible to ever breach the law. In my prior writings on retaliation provisions (this time in Title VII), I complained that they were too narrow--and anyone who thinks that statutory protection shouldn't extend to Robert Jordan in this case is severely lacking in the soul department. But here, the Court isn't looking at limiting the retaliation provision -- it's gearing up to eliminate it entirely.
I agree with Kos: "Congress should pre-empt this case and provide explicit language in the legislation preventing retaliation for discrimination claims." I've been beating the drums for awhile now to get Congress to beef up the retaliation provisions of its civil rights laws for awhile now, and this offers a key opportunity to do so. Discrimination hurts companies too, and by eliminating the incentive for corporations to simply terminate "troublemakers", we don't encourage more litigation -- rather, we encourage employers and employees to develop procedures to resolve these complaints in a just manner without resort to litigation at all. There are no worse incentives in law than those that deliberately and unnaturally pit the interests of employees and employers against each other. In this case, simply restoring the incentive to talk to each other would represent a huge gain for civil rights, as well as the employer's bottom line.