USA Today, February 25, 2008
By Joan Biskupic,
WASHINGTON — Two new job discrimination cases have Supreme Court justices considering how broadly federal law protects workers from retaliation after they complain about bias.
Arguments in one of the cases this past week showed that many of the justices appear ready to retreat from the generous interpretation of retaliation coverage in a 2005 case with then-justice Sandra Day O’Connor casting the decisive vote.
On Wednesday, justices heard a case begun by a black Cracker Barrel restaurant worker who was fired after complaining about a manager’s allegedly derogatory remarks. The arguments showed how much the court is changing from 2005 and, more conclusively, from prior decades when a majority of the justices broadly interpreted anti-discrimination laws.
Justice Antonin Scalia referred to “the bad old days” when the court was broadly interpreting laws “all over the place” to permit lawsuits by workers and other individuals. Then he and U.S. Solicitor General Paul Clement, who was arguing on the side of the former Cracker Barrel worker, began a spirited exchange over the dates of key cases on workers’ rights to sue. “When do you think the bad old days ended?” Scalia quipped.
“The bad old days ended when you got on the court, Mr. Justice Scalia,” Clement shot back.
The courtroom, Scalia included, erupted with laughter at the jest from the U.S. government’s top lawyer before the court — who happens to be a former Scalia law clerk. Scalia, appointed by President Reagan in 1986, once stood out for his interest in curbing lawsuits and his rigorous approach to interpreting laws based on their words, rather than possible congressional purpose. These days, like-minded conservatives Chief Justice John Roberts and Justice Samuel Alito have joined him. Those 2005 and 2006 appointees, along with Justices Clarence Thomas and Anthony Kennedy, could form a majority to curtail the options of workers who face retaliation after complaining about bias.
“With these new justices and this new era, it is not a surprise that the court is going in this direction,” says Notre Dame law professor Barbara Fick, who specializes in employment law. She noted that Kennedy wavered somewhat in the Cracker Barrel case so its outcome could be in doubt.
At one point, Roberts referred to the court’s earlier line of cases as “the more freewheeling approach to statutory interpretation.” He pounded away at the fact that the 1866 racial-bias law at issue in the Cracker Barrel case does not contain the word “retaliation.”
Black workers often use the Reconstruction-era law to supplement the employment-related provisions of the 1964 Civil Rights Act, which has strict time limits for the filings and restricts damages allowed. The broadly written 1866 law, enacted to ensure that former slaves and other blacks had the same right to make contracts as whites, has no such limitations.
Another case argued last week tests whether federal employees who allege age bias under a federal law can sue for retaliation, just as private-sector workers can.
“Retaliation claims go hand-in-hand with discrimination claims,” Justice Ruth Bader Ginsburg said during that dispute, brought by U.S. Postal Service worker Myrna Gomez-Perez. “A person who is discriminated against will quite commonly say: I was not promoted because (of) discrimination, and then because I complained about it all these bad things happened to me.”
In 2005, the court ruled that a federal law that prohibits sex bias in education inherently covers people who face reprisals for complaining about bias. The case involved the coach of a women’s basketball team in Birmingham, Ala. O’Connor, who cast the decisive vote and wrote the opinion, said that retaliation against a person who has complained about bias is a form of bias.
The workers in both recent cases relied heavily on that decision. But it appeared that the justices still on the court who dissented (Scalia, Kennedy and Thomas) may now have a majority to minimize that decision’s reach.
When Cynthia Hyndman, representing the Cracker Barrel worker, said the Birmingham case leads to the principle that retaliation is another form of discrimination, Scalia retorted, “Well, you can say that, but it doesn’t make any sense.”
“Well, that’s what the court held in (2005), your honor,” Hyndman said.
Responded Scalia, “It didn’t make any sense then, either.”