And you thought you had it rough at work...
Here is a funny for the end of the week:
Supreme Court Issues Two Important Retaliation Decisions
The Supreme Court issued two important decisions this week regarding whether retaliation claims may be brought under 42 U.S.C. s 1981 and the ADEA section dealing with federal employees.
Gomez-Perez v. Potter, No. 06-1321 (U.S. May 27, 2008) - The plaintiff in Gomez-Perez alleged that after she complained about age discrimination at her federal employer, she was retaliated against in various ways. She challenged that retaliation under the Age Discrimination in Employment Act (ADEA). The issue was whether the portion of the ADEA that deals with federal employers, which was silent as to this issue, impliedly created a protection for federal employees against retaliation. The Court held that such a cause of action did exist in such circumstances.
CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. May 27, 2008) (Section 1981) - Similarly in the CBOCS decision, the Court found an implied protection against retaliation under the Section 1981 reconstruction era race discrimination statute.
Frankly I was pleasantly surprised by the these decisions given the fight that was had over similar issues under Title IX a few years ago and the intervening change in the Court's membership.
Here is some more analysis from around the employment-law blogosphere:
Tyson Foods Files Reply Brief in Effort to have Supreme Court Redefine "Work"
On Tuesday, the petitioner filed this reply brief in the case of Tyson Foods, Inc. v. de Ascencio. The issue is “whether the time spent donning light protective gear constitutes ‘work’ under the Fair Labor Standards Act if the activities do not require a significant level of exertion.” The cert. petition can be found here and the respondent’s brief in opposition here, while the opinion of the Third Circuit can be found here.
Related Posts:
Eighth Circuit Ignores Supreme Court Desert Palace Decision
This week the Eight Circuit Court of Appeals issued a decision in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008), ignoring the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
The issue has to do with the question of whether so-called "direct evidence" is still required in order to obtain a "mixed-motive" jury instruction. The direct evidence standard was formulated by Justice O'Connor in her Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) concurring opinion. Following Price Waterhouse, many circuits adopted this stricter standard of proof.
In 1991, Congress amended Title VII to specifically provide for a mixed-motive rule. In Desert Palace, the Court, including Justice O'Connor, clearly indicated that the distinction between requiring direct evidence (rather than circumstantial evidence) of discrimination prior to allowing a mixed-motive jury instruction was nonsensical. The Court stated:
"The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'"
Inexplicably, the Eighth Circuit goes out of its way to parse words with the Supreme Court and ignore the obvious intent of Desert Palace:
"The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable."
The Eight Circuit is militantly wrong on this one. This decision creates a clear split in the circuits (See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004)) so perhaps the Supreme Court will take the opportunity to make this point even more clearly than they did in Desert Palace. (Hard to see what they could do in this regard short of issuing an opinion in picture form.)
