By now, Supreme Court watchers who pay attention to employment retaliation cases should be very familiar with Professor Eric Schnapper of the University of Washington School of Law. Professor Schnapper has served as co-counsel in a number of recent decisions favorable to employees. In particular, employees represented by teams which have included Professor Schnapper have won some important victories for employees who suffer reprisal for exercising their rights under federal statutes intended to protect workers.
The best known is probably Burlington Northern & Santa Fe Railway Co. v. White, a 2006 decision in which the Supreme Court held that the definition of retaliation includes employer actions which would chill or deter a reasonable employee from engaging in protected activity. Thus, an employer may be found to have retaliated even if it has not terminated, demoted or otherwise taken a "tangible employment action" against an employee. Also, even if an employee is eventually made whole for an adverse employer action intended to punish him or her for engaging in protected activity, the employee is still aggrieved by the fact that s/he was subjected to the treatment at all, and may seeks damages therefor. Thus, a female track worker employed by Burlington Northern was able to show that reprisal occurred when she was
(1) reassigned to a dirtier and more difficult set of duties after she complained of sexual harassment, and
(2) suspended for 37 days without pay after she filed an EEO charge about the reassignment.
The employer had argued that because the employee's change in duties did not result in any lowering of pay, it could not be regarded as the kind of “adverse action” barred by the statute. The employer also argued that because Ms. White eventually received back-pay for the 37-day suspension, she could not claim to have been harmed by the suspension. Wrong, and wrong.
In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, decided in 2008, the Supreme Court found that Title VII’s prohibition on retaliation against employees who report race or gender discrimination applies to employees who speak out about discrimination only after being asked about it during an investigation. Ms. Crawford was terminated after she was asked about a manager’s harassing activity in an investigation triggered by another employee’s complaint. The employer argued that because Ms. Crawford did not herself file a complaint, but instead only reported the harassing manager’s repulsive conduct after being asked about it, she wasn’t covered by Title VII. Wrong, thank goodness.
Also in 2008, in CBOCS West v. Humphries, where Professor Schnapper was part of the team representing the respondent, the Supreme Court found that 42 U.S.C. §1981, enacted shortly after the Civil War to help codify the end of slavery, permits retaliation complaints. Section 1981 states that 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.” Mr. Humphries was terminated from his assistant manager position at a Cracker Barrel after complaining to managers that another assistant manager had been terminated based on race. The lower court concluded that Mr. Humphries had the right to sue under §1981 because he alleged that his termination was motivated by his complaints about the other employee’s rights being violated. CBOCS WEST, which owned the Cracker Barrel in question, argued that §1981 does not permit retaliation claims because retaliation is not expressly mentioned in the text of the statute. Wrong! The Supreme Court relied on an earlier decision which found that 42 U.S.C. §1982, which bans housing discrimination and was enacted at the same time as §1981, also barred retaliation against those who advocate the rights of groups protected by that prohibition. The Court further found that §1981 and §1982 should be interpreted similarly. Finally, the Court noted that the Civil Rights Act of §1991 overruled a 1989 case where the Court had concluded that §1981 does not include retaliation claims. For all these reasons, the Court concluded that Mr. Humphries did have the right to sue under §1981, and sent the case back for trial.
Well, Professor Schnapper is back, this time with a case involving retaliation under the Fair Labor Standards Act. That’s the federal statute which, among other things, requires employers to pay their employees at least a minimum wage, to pay wages on time, to pay overtime for non-exempt workers when they work past their regular hours, and other major aspects of a civilized workplace. The FLSA also permits employees who suffer retaliation after they engage in protected activity under the Act to file suit. In Kasten v. Saint-Gobain Performance Plastics, the question presented is whether the law applies to an employee who was fired after verbally complaining that his employer was violating the FLSA by requiring employees to don special protective clothing without paying them for the time that took. (The FLSA requires employer to compensate employees for the time it takes to “don and doff” mandatory uniforms or safety equipment.) Do the employee’s verbal-only complaints render him “protected” within the meaning of the Act? The employer argues that because Mr. Kasten did not file a written complaint before his termination, he cannot be considered to have “filed” an FLSA complaint at all and thus has no right to claim retaliation under that statute. Both the EEOC and the Department of Labor, which enforces the FLSA, support Mr. Kasten’s argument that the FLSA’s language about “filing” a complaint includes verbal complaints like the ones Mr. Kasten made. In his brief, Mr. Kasten points to numerous other statutes where the Court has treated retaliation as applying both to written and verbal complaints, even where it is not expressly stated in the laws.
Given the Court’s recent track record of interpreting the law on retaliation broadly, Mr. Kasten has reason to be optimistic. Let’s hope Professor Schnapper’s winning streak continues.