Alaska Employment Law

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Introduction

The United States Supreme Court issued two new labor and employment law opinions on May 27, 2008, dealing with retaliation-related issues.  This summary briefly reviews both cases and their significance.

Gomez-Perez v. Potter

Gomez-Perez, a federal worker employed by the USPS, filed suit alleging a retaliation claim under the Age Discrimination in Employment Act of 1967 (“ADEA”).  The district court dismissed, concluding that ADEA’s federal employee provision did not include any prohibition against retaliation, and that therefore no such claim existed.  The First Circuit affirmed.  In doing so, the court rejected a contrary result reached by the D.C. Circuit and implied by results from the Second and Fourth Circuits.

The Court reversed on a 6-3 vote with Justice Alito writing for the majority.  The majority’s principal point was that a prohibition against retaliation should be implied where it was otherwise consistent with a remedial statute’s scope and purpose.  The concept of “discrimination” should not be so narrowly interpreted as to exclude conduct that would and should run afoul of the statute.  Chief Justice Roberts, Justice Thomas, and Justice Scalia dissented.  The dissent believed that the law must be read in light of its express terms, which did not create a retaliation claim for federal employees.  The dissent noted that Congress provided civil service remedies for federal employees complaining of retaliation.  The fact that independent civil service remedies existed suggested to the dissent that Congress never intended to create an independent judicial remedy under the ADEA.

In my annual preview of cases under review that was issued last October, I predicted:

In Gomez-Perez v. Potter, I believe the Court will reverse.  This case is similar to Jackson v. Birmingham Board of Education, the 2005 Title IX case in which the Court held that Title IX prohibited retaliation even though, unlike Title VII, it did not expressly include a retaliation provision.  There is really no structural or analytical difference between the cases.  The same result should be reached.  However, that was a 5-4 opinion authored by Justice O’Connor who was joined by Justices Stevens, Souter, Breyer, and Ginsburg.  Thus, it could be that this case will test both Justice O’Connor’s legacy and the impact that Chief Justice Roberts and Justice Alito have on the Court.  In addition, Congress did specifically prohibit retaliation for other ADEA claims.  Its failure to include a similar provision in the federal employee provision could well be interpreted as an intent not to waive sovereign immunity for such claims.  However, Chief Justice Roberts has consistently expressed respect for stare decisis, and I think it would be difficult to affirm the First Circuit without also disturbing Jackson—or at least calling Jackson’s reasoning and analysis into doubt.

CBOCS West, Inc. v. Humphries

Humphries worked for a Cracker Barrel restaurant in Illinois.  He filed suit under § 1981 alleging retaliation because he had complained about allegedly discriminatory employment decisions.  Clarifying existing intra-circuit precedent, the Seventh Circuit held that retaliation claims were cognizable even though not specifically identified by the statute.  Seven other circuits, including the Ninth, have reached the same result as the Seventh Circuit.

The Court affirmed on a 7-2 vote with Justice Breyer writing for the majority.  At the risk of oversimplification, the majority reasoned that § 1981 prohibits racial discrimination in contracts, employment relationships are contractual in nature, and therefore § 1981 can be interpreted as prohibiting unlawful racial discrimination in the context of employment relationships.  The majority concluded that such a prohibition should necessarily include a prohibition against retaliation.  Justice Thomas dissented, joined by Justice Scalia.  In the view of the dissenting justices, the statute does not expressly include a retaliation provision, and therefore should not be created by implication.  Courts interpret and apply the law—they do not create statutory provisions.

In my annual preview, I predicted:

In Humphries, I believe the Court will affirm the Seventh Circuit.  This case is interesting from a historical perspective and, if one has the time, the petition filed by the employer represents an excellent overview of the ebb and flow of court opinions.  At the end of the day, though, § 1981 as amended by the Civil Rights Act of 1991 would seem to have broadened the statute’s scope if only because retaliating against an employee would constitute a breach of the implied covenant inherent in any contract.  Eight circuits recognize retaliation claims under § 1981.

Significance

In my opinion, neither case was a surprise.  Although some analysts identified arguable distinctions between these cases and Jackson, there never really was any major significant difference when the dust settled.  Thus, the results here were easy to predict if Jackson remained good law.

For employers, the lesson to take away is the extent to which retaliation claims are expanding under every statutory scheme.  Employers should remember that retaliation claims are not dependent upon a valid underlying claim.  For example, an employee who was disciplined for complaining about sexual harassment would have a valid retaliation claim even if there was no valid or viable sexual harassment claim so long as the employee acted reasonably.  Consequently, employers can expect to see more and more retaliation-based claims or theories alleged in conjunction with claims based on an underlying statute.  Employers should factor this into their risk management decisions.

Students of the Court will also interpret these cases as preserving stare decisis and minimizing the effect of Justice O’Connor’s departure from the bench.  Justice O’Connor had been the Court’s “swing vote” for many years, and some believed that once she stepped down many of the Court’s recent 5-4 decisions (such as the Title IX Jackson case) would be overruled.  It is probably too soon to know one way or the other, but the results in these two cases would seem to allay concerns that the Court would dramatically lurch in a different direction after Justice O’Connor’s retirement.

Conclusion

This legal summary is for informational purposes and is not intended as legal advice.  Employers with questions or seeking additional information should confer with counsel.

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* Mr. Fisher practices law with Birch, Horton, Bittner and Cherot, 1127 West 7^th Avenue, Anchorage, Alaska 99501; (907) 276‑1550; gfisher@bhb.com.  J.D., University of Washington School of Law (1991), Washington Law Review; B.A. with honors, Harpur College, S.U.N.Y. Binghamton (1988).