By Leslie Zieren, Esq.
Consultant to this Program
On May 27, 2008, the U.S. Supreme Court ruled that a claim of retaliation based on racial discrimination under 42 U.S.C. §1981 is a viable legal claim that can be asserted by a plaintiff under that statute. CBOCS West v. Humphries, No. 06-1431.
Mr. Humphries, an African-American man, claimed he was fired from his job in retaliation for repeatedly complaining about his manager’s racial prejudice. He sued under both §1981 and Title VII. His Title VII claims had been dismissed by a lower court as procedurally defective, so Humphries went forward with his retaliation claim under §1981. That section guarantees equality in making and enforcing contracts and is commonly used as a basis for racial discrimination claims in the workplace. The lower federal courts had not been unanimous in recognizing retaliation claims, however. This Supreme Court ruling settles that question.
What does this ruling mean for managers?
Many lower federal courts had already been allowing retaliation claims under Section 1981. With this decision, there is no doubt the retaliation claim exists and will be recognized in all courts.
Plaintiffs have more time to file §1981 claims—four years—than they do to file Title VII claims, which requires an administrative claim be filed no later than 300 days after the alleged discrimination and before filing a lawsuit. This means some claims that were time-barred under Title VII may still be viable under §1981.
Also, §1981 has no limit on the amount of punitive or pain and suffering damages that can be awarded to a plaintiff—unlike Title VII.
Smaller employers beware!
Smaller employers (those with fewer than 15 employees) are now subject to §1981 retaliation claims. Title VII claims are only available to plaintiffs working for an employer with 15 or more employees. And, the damage cap limitations under Title VII do not exist under Section 1981, subjecting small employers to greater potential liabilities.
Another ruling for federal employees
Also on May 27th, the Justices issued an opinion in Gomez-Perez v. Potter, Postmaster General, No. 06-1321. Federal employee and postal worker Ms. Gomez-Perez, 45 years old, had claimed her managers discriminated against her on the basis of her age. The issue before the court was whether the federal sector portion of the Age Discrimination in Employment Act prohibits retaliation against federal workers who complain about retaliation based on age-based discrimination. The Supreme Court concluded that §633a(a), which requires that “[a]ll personnel actions affecting employees…at least 40 years of age… be made free from any discrimination based on age” prohibits retaliation against a federal employee complaining of age discrimination.
What Should Managers Do?
- When an employee makes a discrimination claim, make sure the employee knows that retaliation for making that claim is illegal. Encourage the employee to immediately report any employment action or omission that the employee may think is retaliatory.
- Train all managers to understand how to prevent and identify retaliatory actions.
- Investigate promptly any claims of retaliation.
- Be particularly careful when conducting the personnel evaluation of an employee who has made a discrimination complaint. Sometimes employee performance takes a downturn when the employee is being subjected to and is suffering from discrimination. Make sure the personnel evaluation reflects the reasons for lagging performance, coupled with an action plan to assist the employee in getting back up to his or her usual and expected level of performance.
