LABOR & EMPLOYMENT NEWSLETTER - The Age of Retaliation: Since Burlington N. & Santa Fe. Ry. v. White, 548 U.S. 853

Since the United States Supreme Court’s decision in Burlington N. & Santa Fe. Ry. v. White, 548 U.S. 853 (2006) which lowered the standard for complaining employees to prevail on retaliation claims, virtually every discrimination charge also includes an allegation of retaliation. There has also been an increase in cases in which the sole claim is retaliation. In fact, in 2007 the EEOC reported 26,663 retaliation charges, a two and a half percent increase over 2006. The increase in retaliation charges the previous year (2005 to 2006) before the Burlington decision was much smaller, only three tenths of one percent. The numbers illustrate the importance of the Supreme Court’s role in shaping employment claims.

Despite the frequent usage of the term retaliation in everyday vocabulary, it has a specific legal meaning. For example, Title VII’s¹ anti-retaliation provision forbids employers from taking adverse employment actions against an employee or job applicant because she has opposed a practice Title VII forbids or made a charge, testified, assisted or participated in a Title VII investigation, proceeding or hearing. The aggrieved employee does not have to be in a class protected by Title VII if she engaged in the protected investigation, hearing or proceeding or opposed the protected conduct and suffered what a reasonable person would view as adverse employment consequences as a result of her participation or opposition.

In the wake of expanding retaliation claims, largely shaped by Supreme Court precedent, the high Court recently heard argument which could further increase retaliation claims in employment cases. Specifically, in CBOCS West, Inc v. Humphries, 474 F2d 387 (7th Cir. 2007), cert. granted, __ U.S. __, 128 S. Ct. 168 (2007) the Court was asked to decide whether 42 U.S.C. §1981 (“Section 1981”), a civil rights act which protects individuals from race discrimination should be interpreted to include an anti-retaliation provision. Neither the Act nor its 1991 Amendment includes an anti-retaliation provision.² Instead, Section 1981 gives limited protection to insure that all citizens have equal power to enter into contracts, regardless of race.

Since its enactment, Section 1981 has been used by many aggrieved employees claiming of race discrimination who have either failed to meet the stringent procedural timing requirements of Title VII or who seek damages in excess of those allowed by Title VII. In either scenario Section 1981 is a way for employees alleging race discrimination to attempt alternative methods of recovery for the same alleged conduct. What has not been clear is whether a retaliation claim can also be alleged under Section 1981 which would allow employees a significantly longer time period to bring claims (two years instead of three-hundred days) and to assert retaliation claims which are not subject to the Title VII damage caps.³

Despite the absence of an anti-retaliation provision in Section 1981, some circuit courts of appeals have allowed Section 1981 retaliation claims. The motivation behind retaliation terminations, however, by definition is not racial motivation but the protected activity. In fact, the complaining party’s race is irrelevant. Thus, a strict interpretation of Section 1981 is supported by the statutory language which limits coverage to the complaining party’s race. The difficulty for the courts is that a strict interpretation of Section 1981 would protect employees from discrimination based on their race but would not protect, for example, a white employee who opposed race discrimination in the workplace and who was consequently terminated.⁴ While that seems like an odd outcome, the legislature was given an opportunity to amend Section 1981 in 1991 after other discrimination statutes were enacted with specific retaliation provisions. Thus, if the legislature wanted an additional protection beyond what is afforded in Title VII, Section 1981 could have been amended or written to include an anti-retaliation provision just as the ADEA and ADA. Overall, if the Supreme Court determines that retaliation claims are allowed under Section 1981, be prepared for more retaliation claims filed with race discrimination claims and retaliation claims filed on their own.

¹ See 42 U.S.C. §2000e (The Civil Rights Act of 1964 known as Title VII protects employees from discrimination on the basis of sex, race, veteran status, religion, national origin and color.) In addition, the Age Discrimination in Employment Act, 29 U.S.C. §621 (1988) protects employees from discrimination on the basis of age and includes an anti-retaliation provision and the Americans With Disabilities Act, 42 U.S.C. §12101 (1990) protects employees with disabling conditions which substantially limit a major life activity and, it likewise, includes an anti-retaliation provision.

² 42 U.S.C. §1981(a) -“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts…as is enjoyed by white citizens….”

³ Title VII limits compensatory and punitive damages for non-monetary losses as follows: for employers with 14-101 employees -$50,000; for employers with 100-201employees -$100,000; for employers with 200-501 employees -$200,000; and for employers with more than 500 employees--$300,000. See 42 U. S. C. §1981a(b) (3)(A)(D).

⁴This type of anti-retaliation protection is available under Title VII and is specifically part of the statute.