In two discrimination cases decided yesterday, the Supreme Court interpreted two federal civil rights statutes to support causes of action for retaliation, even though the statutes do not expressly include such rights.
In CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. Supr. Ct. May 27, 2008), the Court ruled 7-2 that although 42 U.S.C. § 1981 does not expressly prohibit retaliation, stare decisis required the Court to find an implied right:
"[C]onsiderations of stare decisis support our adherence to Sullivan [v. Little Hunting Park Inc., 396 U.S. 229 (1969)] and the long line of related cases where we interpret §§ 1981 and 1982 similarly .... We consequently hold that 42 U.S.C. § 1981 encompasses claims of retaliation."
Justices Scalia and Thomas dissented, accusing the majority of ignoring the plain text of the statute, which does not explicitly prohibit retaliation. They believed the majority's ruling only serves to compound the error represented by Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 95 FEP Cases 669 (2005), which found an implied retaliation cause of action under Title IX.
In Gomez-Perez v. Potter, No. 06-1321 (U.S. Supr. Ct. May 27, 2008), the Court ruled that the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees, even though the statute does not expressly include a prohibition against retaliation. The staute does, however, prohibit retaliation in the private sector.
In the 6-3 ruling, Chief Justice Roberts, and Justices Scalia and Thomas dissented. They reasoned that "the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA."