Recently, we have seen a rise in retaliation claims filed by current and former employees.  Courts continue to grant new rights to such complaining employees.  On May 27, 2008, the U.S. Supreme Court issued two decisions clarifying additional ways for employees to pursue such retaliation claims against employers.

In CBOCS West, Inc. v. Humphries, a former assistant manager of a Cracker Barrel restaurant, alleged that CBOCS West, Inc. (Cracker Barrel’s owner) dismissed him (1) because he was black, and (2) because he complained to managers that a fellow assistant manager had dismissed another black employee for race-based reasons.  Humphries filed suit charging that CBOCS’ actions violated both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, a long-standing civil rights law enacted just after the Civil War, which gives "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as enjoyed by white citizens."  Since 1991, the federal Courts of Appeals uniformly interpreted § 1981 as encompassing retaliation actions.  In CBOCS, the U.S. Supreme Court affirmed this interpretation and held that § 1981 does encompass retaliation claims, such as Humphries’, when an individual (black or white) suffers retaliation because he or she tried to help a different individual suffering direct racial discrimination.

On the same day, the U.S. Supreme Court decided Gomez-Perez v. Potter, Postmaster General. In Gomez, a 45-year old postal worker filed suit claiming that her employer had violated the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) which requires that "[a]ll personnel actions affecting employees . . . at least 40 years of age . . . be made free from any discrimination based on age." Gomez-Perez alleged her employer subjected her to various forms of retaliation after she filed an administrative ADEA complaint. The U.S. Supreme Court held that the ADEA prohibits retaliation against a federal employee who complains of age discrimination.  In so concluding, the U.S. Supreme Court followed the reasoning of two prior decisions holding that retaliation is covered by similar language in other anti-discrimination statutes.

In light of these recent Supreme Court decisions expanding the avenues for retaliation claims, employers should take note of the potential for retaliation suits from current and former employees.  While employers should always appropriately address initial complaints of discrimination or harassment, employers should also seriously monitor how the employee is treated after making her/his complaint – as this post-complaint treatment could lead to the basis for a retaliation lawsuit.