Justice Thomas wrote a strong Dissenting Opinion: "Retaliation is not discrimination based on race." Dissenting opinion, page 4. "Of course, if an employer had a different retaliation policy for blacks and whites - firing black employees who complain of race discrimination but not firing similarly situated white employees - a black employee who was fired for complaining of race discrimination would have a promising (Sec.) 1981 claim. But his claim would not sound in retaliation; rather, it would be a straightforward claim of race discrimination." Page 4, footnote 2.
In Gomez-Perez v. Potter, Post Master General, a 45-year-old U.S. Postal Service in Puerto Rico sued in federal court, claiming retaliation after she was denied a job transfer back to her former post office, filed a union grievance and then an internal complaint of age discrimination. See http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf. Ms. Myrna Gomez-Perez was a full-time "window distribution clerk" in Dorado, Puerto Rico, requested and receive a job transfer to a part-time position the post office in Moca, Puerto Rico, so she could be closer to her ill mother. After only a month in the new job, she requested a transfer back to her old full-time job. Her supervisor denied the request, explaining that he had changed the position to part-time and filled it with another employee. Ms. Gomez-Perez that filed a grievance through her union, alleging age discrimination - it was unsuccessful. She then filed an internal complaint of age discrimination with the Post Service EEO office.
As that complaint was pending, she allegedly suffered retaliation in various forms: being called into meetings with her supervisor during which various groundless complaint were made against her; some one wrote her name of a anti-sexual harassment poster; being falsely accused by co-workers of sexual harassment; and being told by co-workers to "go back" to where "she belonged."
She filed a lawsuit in federal court for "retaliation" because of her age discrimination complaint, which was dismissed. In a 5 to 4 decision, the majority held that she is protected from retaliation under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. 633 (a)(a), and Congress intended to protect federal employees when filing internal complaints of age discrimination. The Court ordered the case set back to the trial judge in Puerto Rico for pre-trial discovery and jury trial.
The majority decisions in these two cases should be a "red flag" to employers nationwide. Congress has placed no caps on the amount damages that can be awarded by juries under "1981 suits" and these suits can be filed directly in federal court without any EEOC "right to sue" letters (compare to Title VII, where Congress has placed caps on damages, and employees must first file a charge with the EEOC and get a "right to sue" letter). Another caution: in many states an employer's insurance policy can not pay for "punitive" damages. Employers need to re-train their supervisors - "document/document."
LARRY BENNETT, a Firehouse.com Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at firstname.lastname@example.org.