In boost for workers, high court affirms shield from employer retaliation
The justices rule that civil rights law protects a woman who was fired after answering questions in a harassment probe.
By Warren Richey, Staff writer of The Christian Science Monitor
from the January 27, 2009 edition
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Employees who provide evidence during an informal investigation of discrimination in the workplace are legally protected against retaliation from the boss or other senior managers.

In an important workers' rights decision announced Monday, the US Supreme Court ruled unanimously that Title VII of the Civil Rights Act of 1964 shields employees from retaliatory acts even when the employee hasn't filed a formal complaint.

In an eight-page decision written by Justice David Souter, the high court cast a broad blanket of protection over American workers struggling in a hostile work environment. Those employees who help identify and root out allegedly discriminatory actions by senior managers and supervisors – even though they may not have filed a formal complaint – are nonetheless protected from retaliation, the court said.

The decision puts managers and supervisors on notice that they face legal consequences if they use their power in the organization to try to cover up their own discriminatory actions by retaliating against complaining employees. In addition, the decision puts employees on notice that, when they come forward to help expose discrimination in the workplace, they clearly enjoy the protections of the law.

The decision comes in the case of Vicky Crawford, a 30-year employee in the payroll department of the Metropolitan Government of Nashville and Davidson County, Tenn. Ms. Crawford agreed to answer questions during an informal inquiry into allegations that the director of employee relations had engaged in sexual harassment of female workers in the office. Among the director's duties was investigation of sexual-harassment complaints.

Crawford did not initiate the investigation, nor had she filed any formal charges. The internal inquiry was conducted by a female lawyer in the legal department. Crawford told the lawyer she was afraid she might lose her job if she told the truth about the manager's behavior.

Crawford eventually answered the questions. She was one of three women who told the lawyer that the director of employee relations had made repeated inappropriate gestures and comments of a sexual nature in the workplace.

After the investigation, the director of employee relations received a verbal reprimand, but no other disciplinary action was taken. Senior management then began an investigation of Crawford and her department. She and the two other women were fired.

Crawford sued, claiming protection under Title VII. But a federal judge and a panel of the Sixth US Circuit Court of Appeals ruled against her. They said Title VII protects only those employees who had demonstrated active "opposition" to the alleged conduct by having already filed a formal discrimination charge with the company or the US Equal Employment Opportunity Commission.

On Monday, the Supreme Court reversed that decision.

"The Sixth Circuit thought answering questions fell short of opposition, taking the view that the (law) demands active, consistent opposing activities to warrant protection against retaliation," Justice Souter wrote. "Though these requirements obviously exemplify opposition as commonly understood, they are not limits of it."

He noted that, for example, many people are known to oppose capital punishment without writing public letters or demonstrating in the streets. "We would call it 'opposition' if an employee took a stand against an employer's discriminatory practices not by instigating action, but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons."

The central issue in the case was whether Crawford's actions were sufficient to trigger the protections of the law. In passing Title VII, Congress outlawed retaliation against employees who "participate" in a discrimination probe or who "oppose" a form of discrimination they are encountering.

In its decision, the high court focused on the statute's "opposition" requirement and concluded that Crawford's answering of the company lawyers' questions qualified as "opposition" under Title VII.

Lawyers for the Metropolitan Government have argued in the case that Crawford couldn't claim antiretaliation protection under Title VII because she hadn't filed a formal charge with the EEOC against the senior manager or taken other direct action in opposition to the alleged harassment.

The high court disagreed. "Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question," Souter wrote.

Employment lawyers had warned that the Sixth Circuit's view of the law would create a strong incentive for workers to stay silent in the face of discrimination and retaliation by their bosses. Some say that incentive already existed.

According to one study, 62 percent of state workers who complained of sexual harassment reported that they faced retaliation in the form of lowered job evaluations, denial of promotions, and being transferred or fired.

More than half of women in the US face some form of workplace sexual harassment, and most of them never report it, according to the National Women's Law Center.

Souter recognized the danger in his opinion. "If it were clear law that an employee who reported discrimination in answering an employer's questions could be penalized with no remedy, prudent employees would have good reason to keep quiet," he wrote. "The (Sixth Circuit) appeals court rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment."

High court case: If harassed workers talk, can they be fired?
A Tennessee woman lost her job after she cooperated in a company investigation.
By Warren Richey, Staff writer of The Christian Science Monitor
from the October 7, 2008 edition
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Washington - The US Supreme Court is set to hear a case this week that will provide important practical advice to workers asked to participate in an internal company investigation of alleged sexual harassment by a senior manager.

The question: Should you cooperate and speak freely, or remain silent?

"Be quiet if you want to keep your job," says Ann Buntin Steiner, a Nashville employment lawyer.

The issue arises in a case examining whether civil rights laws protect employees from retaliation by senior managers accused of sexual harassment.

The concern among employees is that if they speak freely and implicate a senior manager or supervisor in discriminatory conduct they will probably be subject to workplace retaliation by senior managers or supervisors.

The fear is not hypothetical. According to one study, 62 percent of state workers who complained of sexual harassment reported that they faced retaliation in the form of lowered job evaluations, denial of promotions, and being transferred or fired.

More than half of women in the US face some form of workplace sexual harassment, and most of them never report it, according to the National Women's Law Center.

Last term, the Supreme Court ruled for employees and against supervisors in two cases where workers lost their job or were otherwise punished after complaining about workplace discrimination. The high court held that civil rights laws protect workers from such retaliation.

On Wednesday, the justices take up another retaliation case – this one involving a 30-year employee in the payroll department of the Metropolitan Government of Nashville and Davidson County, Tenn. Vicky Crawford agreed to answer questions during an informal inquiry into allegations that the director of employee relations had engaged in sexual harassment. Among the director's duties was investigation of sexual harassment complaints.

Ms. Crawford did not initiate the investigation, nor had she filed any formal charges. The internal inquiry was conducted by a female lawyer in the legal department. Crawford told the lawyer she was afraid that if she told the truth she might lose her job. Nonetheless, she became one of three women who told the lawyer that the director of employee relations had made repeated inappropriate gestures and comments of a sexual nature in the workplace.

After the investigation, the director of employee relations was given a verbal reprimand, but no other disciplinary action was taken. Senior management then began an investigation of Crawford and her department. She and the other two women were fired.

Crawford sued.

The central question in the case is whether Crawford is protected under Title VII of the Civil Rights Act of 1964 from retaliation by senior managers after informally accusing a senior manager of sexual harassment. Her lawyers say she is protected because of her cooperation in the internal sexual-harassment investigation.

Lawyers for her former employer, Nashville and Davidson County, say that because Crawford hadn't filed a formal discrimination or sexual harassment charge with the Equal Employment Opportunity Commission (EEOC) or taken other direct action in opposition to the alleged harassment, she could not claim antiretaliation protection under Title VII.

A federal judge agreed and threw out Crawford's case. That decision was affirmed by a three-judge panel of the Sixth US Circuit Court of Appeals. "At a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII," the Sixth Circuit panel ruled.

At issue before the Supreme Court is whether the Sixth Circuit was too stingy in applying the protections of Title VII. In passing Title VII, Congress outlawed retaliation against employees who "participate" in a discrimination investigation, or who "oppose" a form of discrimination they are encountering.

Crawford never filed a charge accusing the senior manager of sexual harassment, and she never took the initiative to declare her opposition to the alleged sexual harassment. Fearful that she might lose her job, she kept quiet about the alleged harassment until she was questioned by the legal department lawyer.

Is that enough to trigger Title VII protection?

"The case boils down to whether someone who is asked to cooperate in an internal (workplace) investigation can invoke Title VII's retaliation provision without having done anything more overt or affirmative to put the employer on notice of a potential violation," says Rae Vann of the Equal Employment Advisory Council, who filed a friend-of-the-court brief supporting the metropolitan government.

"The statute is clear, you either oppose or you participate," Ms. Vann says. "Merely being a coincidental participant in an investigation that was begun by the employer proactively isn't enough to do it."

Crawford's lawyers, Ms. Steiner, and University of Washington Law School Prof. Eric Schnapper say antidiscrimination laws were written to be broadly interpreted to protect victims of discrimination. They say the Sixth Circuit's interpretation leaves a gap in the law's protections that creates a strong incentive for employees to remain silent rather than participate in an internal company investigation.

"If I had a client and I was in the Sixth Circuit and an employer was conducting a sexual harassment investigation, I would advise her not to cooperate," says Mr. Schnapper.

"That means the employer can't find out if sexual harassment is going on," he adds. "It is bad for the employer, it is bad for the employee, it is bad for everybody."

Vann says the law is structured to encourage employees to take an active stance against discrimination and that when they stand up and speak out against discrimination they enjoy the full protections of Title VII. "Congress has to draw a line somewhere," she says.

Without that clear line, employers might face a trumped-up discrimination lawsuit every time a dishonest or poor-performing worker is fired, Vann says.

Workers can sue firms over retaliation, Supreme Court rules
In two rulings Tuesday, the justices took an expansive view of civil rights law.
By Warren Richey, Staff writer of The Christian Science Monitor
from the May 28, 2008 edition
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Washington - American workers who complain about race or age discrimination on the job can sue their bosses for any subsequent retaliation.

In two decisions announced on Tuesday, the US Supreme Court embraced an expansive view of certain civil rights laws that do not explicitly outlaw acts of retaliation.

Nonetheless, the majority justices said the overall purpose of the laws suggests an intent by Congress to prevent discrimination – including retaliation aimed at punishing those who file age- or race-discrimination complaints.

At issue in both cases was whether Congress had created a cause of action in the law to permit retaliation lawsuits.

While some laws, such as Title VII of the Civil Rights Act of 1964, ban retaliation in response to any discrimination complaint, other important civil rights laws make no mention of retaliation.

The majority justices ruled that employees can claim legal protections against retaliation even if the law does not specifically bar acts of retaliation.

Writing for the majority in one of the cases, Justice Stephen Breyer cited two prior decisions of the high court in 1969 and 2005 as supporting an expansive view of such laws. "We believe it is too late in the day in effect to overturn the holding in that (1969) case," Justice Breyer writes for the seven-justice majority in CBOCS West, Inc. v. Humphries.

In a dissent, Justices Clarence Thomas and Antonin Scalia said if Congress intended for a law to cover retaliation it would have said so in the statute. "The court does not even purport to identify any basis in the statutory text for the 'well-embedded interpretation (of the law)' it adopts for the first time today," Justice Thomas writes. Unlike the court, he said he found the statute's text conclusive.

Court declines to take more restricted approach

Both decisions are important because they affirm a trend at the high court embracing an expansive reading of civil rights laws. Some analysts had suggested that the court might adopt a more restrictive approach to such laws – making it harder for victims of discrimination to sue – after the 2006 retirement of Sandra Day O'Connor and the arrival on the court of her replacement, Justice Samuel Alito.

But that question was answered with today's decision. Justice Alito voted with the majority in both cases and authored the majority opinion in the second case, Gomez-Perez v. Potter.

In both cases, employees sued their supervisors for alleged acts of retaliation in the workplace after the workers had made initial complaints about discriminatory conduct by managers. One suit was filed under Section 1981 of the Civil Rights Act of 1866. The other was filed under the public employee section of the Age Discrimination in Employment Act of 1967. Neither law mentions retaliation.

The decision in the Humphries case involves a former assistant manager at a Cracker Barrel restaurant in Bradley, Ill., who was allegedly fired in retaliation for his repeated complaints about racial prejudice by his supervisor.

Hedrick Humphries, who is African-American, had worked for three years at the Cracker Barrel. In 2001, he complained to a district manager that the general manager at the Bradley restaurant made racially offensive remarks and that the general manager's termination of a black employee had been racially motivated.

The district manager took no action against the general manager. Instead, he fired Mr. Humphries based on a report that Humphries had left the store safe open overnight. Humphries denies the allegation.

Humphries filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) under both Title VII and Section 1981. The EEOC verified his complaint and issued a letter authorizing him to file suit in federal court.

By the time Humphries filed his lawsuit, the Title VII complaint was dismissed because he missed a deadline to pay his filing fee. No such deadline exists for Section 1981 suits, so that portion of the suit survived the first challenge. But the Section 1981 complaint was later thrown out because the judge found there was insufficient evidence to support a suit.

Section 1981 is one of the oldest civil rights statutes in the nation, passed after the Civil War to force southern employers to honor employment and other contracts with newly freed slaves. Humphries argued that such a broad prohibition of discrimination would surely also outlaw acts of retaliation related to discrimination.

The Seventh Circuit Court of Appeals in Chicago agreed, reversing the previous ruling and finding that Humphries was entitled to file a retaliation suit.

Age-discrimination case

The second case involves a US Postal Service employee in Puerto Rico, Myrna Gomez-Perez, who says her supervisor retaliated against her after she filed an age-discrimination complaint against him.

Ms. Gomez-Perez says that after filing her complaint she was harassed and mocked and accused of sexual harassment. She claims her work hours were substantially reduced.

She filed suit under the Age Discrimination in Employment Act (ADEA), claiming her supervisors had engaged in retaliation and discrimination. Both a federal judge and the Boston-based First Circuit Court of Appeals threw the suit out. The appeals court ruled that the ADEA does not cover acts of retaliation since the word "retaliation" does not appear in the statute.

On Tuesday, the Supreme Court reversed that decision by a vote of 6 to 3.

The high court also affirmed the Seventh Circuit decision in the Humphries case by a vote of 7 to 2. Chief Justice John Roberts dissented in the Gomez-Perez case but joined the majority in the Humphries case.

Chief Justice Roberts explained his dissent in the Gomez-Perez case in part because "Congress has always protected federal employees from retaliation through the established civil service process."

In upholding the Seventh Circuit on Tuesday, the majority justices said there was no need for Congress to include explicit language about retaliation. Congress's intent to facilitate expansive civil rights enforcement was clear from subsequent congressional amendments to the laws, Justice Breyer writes.

In his dissent, Thomas criticized the majority for retreating behind "the fig leaf of ersatz stare decisis." He accused the majority of misreading prior legal precedents.

Thomas says the high court's decision "creates an entirely new cause of action" unrelated to race discrimination.

"By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose," writes Thomas. "That the court does so under the guise of stare decisis does not make its decision any more justifiable."

Alito, writing for the majority in the Gomez-Perez case, presents the same core legal analysis as Justice Breyer does in the Humphries case. Both decisions cite the 1969 opinion Sullivan v. Little Hunting Park and the 2005 decision Jackson v. Birmingham Board of Education.

Alito says Congress meant the ADEA to be a broad, general ban on age discrimination. "Congress was presumably familiar with Sullivan and had reason to expect that this ban would be interpreted in conformity with that precedent," Alito writes.

Tuesday's decisions add momentum to an important trend at the high court toward embracing an expansive approach to the interpretation of civil rights statutes.

In 2005, the Supreme Court ruled 5 to 4 in the Jackson case that a girl's high school basketball coach could sue the school board for alleged retaliation against him after he complained that his female players were not receiving equal access to sports equipment and facilities.

He sued under Title IX, which bars gender discrimination in education. Like Section 1981, Title IX does not specifically mention a cause of action for retaliation. Nonetheless, the majority justices found that retaliation was a form of discrimination outlawed under the statute.

The decision was written by then Justice O'Connor. Now, with O'Connor no longer on the court, the justices affirmed the same principle, but this time instead of 5 to 4, the votes were 6 to 3 and 7 to 2.

Employer retaliation cases reach U.S. Supreme Court
When can workers sue against acts of retaliation by employers? Two cases slated for hearing this week may help clarify.By Warren Richey, Staff writer of The Christian Science Monitor
from the February 19, 2008 edition
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WASHINGTON - Employers, managers, and supervisors wield enormous power in the workplace over the lives and wellbeing of their employees.

Congress has recognized that sometimes this power can be abused by managers who retaliate if they don't like something that employee has said or done.

This week, the US Supreme Court will hear oral arguments in two cases examining how, when – or even if – employees can fight back against such abuses of power. On Tuesday, the high court will examine whether a US postal worker can claim retaliation in a lawsuit under the Age Discrimination in Employment Act because she says her supervisor refused to let her return to her old job because he didn't like her personally. Instead, he hired a younger, less experienced worker.

On Wednesday, the justices will hear the case of a former assistant manager at a Cracker Barrel restaurant who alleges he was fired in retaliation for his repeated complaints about racial prejudice by his supervisor.

In both cases the laws cited do not explicitly authorize legal action in response to an act of retaliation. Lawyers for the employees say retaliation is a particularly virulent form of illegal discrimination and thus falls within the scope of the US's civil rights laws even when those laws don't specifically mention retaliation.

Lawyers for companies and supervisors counter that if Congress wanted to authorize lawsuits to punish acts of retaliation, it would have written it into each statute.

In 2005, the high court ruled 5-4 that a girl's high school basketball coach could sue the school board for allegedly retaliating against him after he complained his female players were not receiving equal access to sports equipment and facilities.

He sued under Title IX, which bars gender discrimination in education. Title IX does not specifically mention a cause of action for retaliation, but the majority justices found that retaliation was a form of discrimination outlawed under the statute.

The decision was written by Justice Sandra Day O'Connor. She has since retired, and it is unclear how newer members of the court, Chief Justice John Roberts and Justice Samuel Alito will view the issue.

Legal analysts say they are watching these cases to see how broadly or narrowly the high court reads the statutes.

Will the majority justices insist that unless Congress has included the specific word "retaliation" in the statute, the law does not provide a cause of action against retaliation? Or will the Supreme Court embrace a more prophylactic approach against discrimination and let employees use the force of law to counter workplace retaliation even when it is not spelled out in the statute?

The court has also agreed to decide a third retaliation case, which has not yet been set for oral argument. It involves a woman who was fired after she was asked to provide evidence against a co-worker accused of sexual harassment. Her retaliation lawsuit was thrown out because she had never filed an underlying sexual harassment suit.

The high court's granting of three similar cases in such a short period of time is unusual, legal experts say, and suggests that the issue of retaliation is of some importance to the justices. What remains unclear, they say, is whether the court will decide these cases in ways that expand civil rights protections or narrow them.

"The court has taken a number of retaliation cases over the past several years and has been generous in providing protection for employees," Georgetown Law Center Professor Michael Gottesman said in a recent press briefing.

Some analysts suggest that the change in personnel at the high court may have eroded support for O'Connor's expansive reading of Title IX. Some are optimistic that the high court will uphold the former justice's pragmatic approach to civil rights laws.

"These are statutes that are supposed to work for real people," says Jocelyn Frye, general counsel of the National Partnership for Women and Families. "We don't want the justices to distort the laws to a level of abstraction so they become unworkable."

Ms. Frye adds, "Many of us have grave concerns about the two newest additions to the court," referring to Mr. Roberts and Mr. Alito.

Others are urging the court to move away from O'Connor's expansive reading of civil rights laws. In the Cracker Barrel case, the employee filed suit under Section 1981 of the federal civil rights laws.

"Section 1981 does not contain a retaliation provision," says Rae Vann, general counsel of the Equal Employment Advisory Council, who authored a friend-of-the-court brief in the Cracker Barrel case. "If you look at other federal employment non-discrimination laws like Title VII, the Americans With Disabilities Act, and the Age Discrimination in Employment Act, there are specific statutory provisions that speak to a prohibition against retaliation."

"What Title VII does in addition to prohibiting discrimination on the basis of race, it also prohibits retaliation," she said during a recent telephone press briefing. "There is no companion provision under Section 1981."

Ms. Vann's Equal Employment Advisory Council is a nonprofit association that represents major corporations in employment matters.

"Our position is that it is inappropriate (for the justices) to read into a statutory provision language that simply does not exist" in the statute, she says.

If Congress wants to extend protection to employees against retaliation across the full array of federal civil rights laws, Congress itself should take that action, she says, it should not be done by the Supreme Court.

But, there are some roadblocks:

From high court, warning to whistle-blowers
The justices find that public workers' criticisms aren't 'protected' speech.
By Warren Richey, Staff writer of The Christian Science Monitor

WASHINGTON - Government employees do not enjoy free-speech protection against being disciplined for exposing official misconduct at work.

In an important decision that will make it more difficult for some government whistle-blowers, the US Supreme Court ruled Tuesday that public workers who make allegations of misconduct in official reports and in work-related statements may be disciplined for their speech without violating First Amendment protections.

The 5-to-4 decision came in the case of Richard Ceballos, a supervising district attorney in Los Angeles. Mr. Ceballos had raised questions in a memo about whether a deputy sheriff had lied to obtain a search warrant. Ceballos later testified for defense attorneys who were attacking the validity of the search warrant and seeking to have the case against their client dismissed.

Other prosecutors in Ceballos's office disagreed with his assessment, and a trial judge ruled the case could go forward.

Ceballos was reassigned. He later filed a federal lawsuit saying his supervisers demoted him in retaliation for his memo and testimony on the search-warrant issue.

In his suit, Ceballos claimed his actions were protected by the First Amendment.

A federal judge dismissed the suit, but the Ninth US Circuit Court of Appeals ruled that the Ceballos memo was protected speech.

On Tuesday, the Supreme Court reversed that ruling.

"When public employees make statements pursuant to their official duties, [they] are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," writes Justice Anthony Kennedy for the majority.

The majority justices drew a distinction between work-related speech and the speech of a concerned citizen.

"When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences," Justice Kennedy writes. "When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny."

Joining Kennedy's majority opinion were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The case had first been argued when Justice Sandra Day O'Connor was on the court. It was set for reargument after Justice Alito joined the high court, suggesting the justices were split 5-4 on the case.

In a dissent, Justice John Paul Stevens called the majority opinion "misguided."

"The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never,' he writes.

"Of course a supervisor may take corrective action when such speech is inflammatory or misguided," Justice Stevens writes. "But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?"

Kennedy said there are protections other than the First Amendment that safeguard whistle-blowers and others from supervisers who might use their managerial powers inappropriately.

Justice David Souter, in a separate dissent joined by Stevens and Justice Ruth Bader Ginsburg, said he agreed with the majority that a government employer has "substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work."

Justice Souter adds: "But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy."

When those interests do outweigh the government's stake, Souter writes, "public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."

Also on Tuesday, the Supreme Court agreed to examine whether an Oregon jury overstepped constitutional bounds when it ordered the Philip Morris tobacco company to pay $79.5 million in damages to the family of a longtime smoker.

The jury made the award to the family of Jesse Williams, who had smoked three packs of Marlboro cigarettes a day until he died of lung cancer in 1997.

At issue in the case is whether the jury award is in proportion to the injury suffered. The case, Philip Morris v. Williams, won't be heard by the court until next fall.

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