Retaliation protections for workers who complain about race and age discrimination in the workplace were extended by the Supreme Court in two cases decided on May 27, 2008. In the first case, the Court found that 42 U.S.C. § 1981 encompasses claims of race-based retaliation even though the statute does not specifically mention retaliation. Similarly, in the second case, the Court held that federal workers, like private sector employees, may assert claims of retaliation under the Age Discrimination in Employment Act (ADEA), despite the absence of a retaliation provision for federal employees.

About the Cases

In CBOCS West, Inc. v. Humphries, an African-American assistant manager of a Cracker Barrel restaurant filed suit under Title VII and 42 U.S.C. § 1981 claiming he was fired because of racial bias and because he had complained to managers that a fellow assistant manager had dismissed another black employee for racial reasons.  The trial court rejected the manager’s Title VII claims because he failed to timely pay certain filing fees, and dismissed the manager’s 1981 direct discrimination claim because of a lack of proof. However, the trial court allowed the manager to proceed with his claim under 42 U.S.C. § 1981 that he was fired in retaliation for complaining about the unlawful termination of another employee. The appellate court upheld the trial court’s ruling and the employer appealed contending that 42 U.S.C. § 1981 does not allow for a claim of retaliation.

The Supreme Court confirmed the federal appellate courts’ uniform interpretation of 1981 and held that 42 U.S.C. § 1981 does indeed encompass retaliation claims even though the statute does not specifically refer to retaliation. The Court’s holding is significant for employers because race claims brought under 42 U.S.C. § 1981 are not subject to the damages caps applicable to Title VII race based claims. Additionally, § 1981 applies to employers of all sizes, and claimants are not required to follow the procedural and administrative requirements necessary for a Title VII claim, such as filing a charge of discrimination with the Equal Employment Opportunity Commission. 

In Gomez-Perez v. Potter, a 45-year-old postal worker requested and was granted a transfer to be closer to her mother who was ill. When she later sought to return to her original job, it had been modified and filled with another employee; the postal worker then filed an EEO complaint with the USPS alleging age discrimination. She alleged that after she filed the complaint, her supervisors retaliated against her, including lodging false complaints about her and reducing her work hours. She brought a retaliation claim against her employer under the ADEA. The trial court dismissed the claim, holding that the ADEA does not provide for retaliation claims by federal employees, and the appellate court agreed.

The Supreme Court disagreed. Despite the absence of an express retaliation provision regarding federal employees (as exists in the ADEA for private sector employees), the Court held that federal employees may assert retaliation claims under the ADEA. The Court ruled that the ADEA’s ban on “discrimination based on age” for federal employees is sufficiently broad to cover retaliation claims.