Retaliation: now without pesky filing deadlines!

Imagine getting sued by an employee who was fired nearly four years ago. Following a recent Supreme Court decision, lawsuits from forgotten former employees will now become much more common. And more expensive.

In CBOCS West, Inc. v. Humphries, the Supreme Court ruled 7–2 in favor of an assistant manager at a Cracker Barrel restaurant. The employee sued claiming that he was fired because he was black and because he had complained about the dismissal of another black employee. What’s unusual about this case is that he sued under a Reconstruction-era statute, 42 U.S.C. § 1981. Unlike the more-common Title VII, Section 1981 does not address retaliation in its text. But the Supreme Court decided that the employee could sue for retaliation under that law nonetheless.

The implications for employers are substantial. With the Supreme Court “discovering” a retaliation claim in Section 1981, employees have a better option than the traditional Title VII claim. To bring a claim under Title VII, employees must first file with the EEOC — and they must do so within 180 days of the alleged retaliation (or 300 days if filing with a state agency). They must also file in court within 90 days of the EEOC’s issuing a right-to-sue letter. None of these restrictions applies to Section 1981, and an employee has four years to bring a claim. Also, Title VII caps the amount of damages an employee can win. Section 1981 has no cap.

In the Court’s opinion, Justice Breyer wrote that even though the statute lacked retaliation language, Congress must have intended that the right to “make and enforce contracts” free from discrimination included protection against retaliatory discrimination. The Court cited legislative reports that suggested Congressional intent to have § 1981 apply to retaliation claims. Justice Thomas wrote a scathing dissent (which Justice Scalia joined), arguing that if Congress intended to include retaliation in the statute, it would have written the law that way.

With no agency-filing requirements, no damages caps, and a much-longer limitations period, Section 1981 provides disgruntled employees claiming retaliation with a more-powerful weapon. Even employees who have already missed their Title VII deadlines can now file in federal court under Section 1981. Employers who thought they were safe after 180 days now have another three-and-a-half years to worry about new lawsuits.

What employers can do

• Don’t penalize employees for complaining about discrimination
• Train all supervisors to properly handle discrimination claims
• Read the Supreme Court’s opinion here (PDF, 228K)

Comments

[HR Wench]

Perhaps I am ignorant and naive. What could possibly cause a former employee to wait FOUR YEARS to sue a company they legitimately felt discriminated and/or retaliated against them?

[Chris Young]

Wow... Thank you for your insight, Jay... As always - insightful and spot on.

Makes me wonder how many lawsuits we will see... It also makes me want to say... Document everything. EVERYTHING.

While I respect the EEOC is there to do a job, I have to also ask... What kind of people wait four years? Angry people - who may not have an issue in the first place.

I have had clients who were under the "spotlight" of the EEOC and it really is a scary situation. I feel that the burden of proof is on the accused who has to "expose" themselves to demonstrate they did nothing wrong. The process is emotionally draining for the accused - especially when they have really done nothing wrong.

The incentive to "settle" is high - even when nothing has actually been done wrong.

Clearly there are those out there who violate the rights of others - who do wrong. They should be punished - severely.

My concern is how the 4 year approach will really hurt the innocent who have the least resources to fight a claim and have the most to lose.

Makes me think that at the same time the claim time limit being extended to 4 years - the risk to the accuser who is being malicious should be higher as well.

Thanks again, Jay!