This week the Supreme Court reaffirmed that protection against retaliation is a crucial aspect of the enforcement of our nation’s civil rights laws in two decisions. CBOCS v. Humphries involved a restaurant manager who alleged that he was fired after reporting racially derogatory remarks and differential treatment of minority employees. Gomez-Perez v. Potter involved a postal worker who claimed retaliation after she complained that the refusal to grant her a transfer was based on age discrimination.

In both cases the Court did what we should have been able to expect– to follow precedent.  The Court affirmed a case decided just over three years ago, Jackson v. Birmingham Board of Education, which held that Title IX’s broad prohibition against sex discrimination in educational institutions that receive federal funds also prohibits retaliation, which, in turn, was based on another Supreme Court case decided almost 40 years ago. Thus, in Gomez-Perez and CBOCS the Court stood by its longstanding precedent to hold that a right to be free from discrimination includes a right to be free from retaliation.  Indeed, the Court recognized, as it has in the past, that protections against discrimination include a protection against retaliation.

But unfortunately this Court has not always been willing to apply its own precedent.  Just last term, in Ledbetter v. Goodyear Tire & Rubber in a 5-4 decision, the Court reversed long-standing ruling and interpretations and held that employees must challenge discriminatory pay decisions within 180 days after the initial discriminatory decision. The decision in Ledbetter simply failed to recognize the realities of the workplace for employees who may not know they are paid less than their peers until it is too late and instead gave a windfall to employers who can run out the 180 days by simply concealing their discriminatory conduct.

Congress has the opportunity to restore the right to challenge unfair pay by passing the Lilly Ledbetter Fair Pay Act.  Although the bill moved quickly through the House, it fell a few votes short of moving to the Senate floor for debate and a vote on the bill itself — for now.  But if the Court had simply applied the law like it did in Gomez-Perez and CBOCS in the Ledbetter case, there would be no need for Congress to fill the gap between the Court’s decision and the realities of the workplace.

This entry was posted on Thursday, May 29th, 2008 at 3:01 pm and is filed under Politics, Civil Rights .