May 29, 2008Client Alert

The Continuing Rise of Retaliation Claims

Retaliation claims are a growing trend and continue to be an area of concern for employers. Two decisions issued yesterday by the United States Supreme Court in CBOCS West, Inc. v. Humphries and Gomez-Perez v. Potter, Postmaster General add fuel to the retaliation fire. These cases allow employees to sue for retaliation under two federal anti-discrimination statutes.

In CBOCS West, Inc. v. Humphries, the Supreme Court held that employees have a right to bring retaliation claims under Section 1981, which is a Reconstruction Era statute that bans racial discrimination in the making and enforcing of contracts. In Gomez-Perez v. Potter, Postmaster General, the Supreme Court held that a federal employee who is a victim of retaliation due to filing an age discrimination charge under the Age Discrimination in Employment Act (ADEA) may assert a retaliation claim under the federal-sector provision of ADEA. Both of these decisions follow the Court's trend of expanding employees' right to sue for retaliation under anti-discrimination statutes.

The Court's holdings were largely based on its past interpretation of Section 1982, a provision similar to Section 1981. These statutes are consistently interpreted alike. A majority of the Court found that past interpretation of similar statutes was convincing enough to apply the same interpretation to Section 1981. Justices Thomas and Scalia dissented, arguing that there is no basis for broadening the scope of retaliation claims under anti-discrimination statutes where there is no mention of it in the statutes.

The practical implication of these cases is that retaliation claims will remain one of the fastest growing and most far reaching charges against an employer. The number of retaliation cases filed with the EEOC has more than doubled in the past 15 years. Today, retaliation claims are the second most common claim filed with the EEOC (second only to race discrimination claims). Moreover, after the CBOCS case, retaliation claims will increasingly be brought under Section 1981, which has a longer statute of limitations than Title VII of the Civil Rights Act of 1964 and has no caps on damages. As we have reported previously, retaliation cases tend to be more difficult to defend and can be easier to prove by the plaintiff. Sound investigation and disciplinary policies and practices are especially important in this setting and, if you need counsel, feel free to call your Michael Best contact or contact Scott C. Beightol at or 414.225.4994.

This article was written by Scott C. Beightol, with assistance from Charmaine M. Stanislaw, Summer Associate.

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