Tuesday, September 25, 2007
The second certiorari in an employment discrimination case granted by the Court today involves the question of whether a retaliation claims exists under the race discrimination provisions under Section 1981. In CBOCS West v. Humphries, 06-1431 (petition for cert.):
The sole legal issue presented here - whether race retaliation is cognizable under Section 1981 - is an issue that has suffered from years of jurisprudential vacillation and uncertainty. Appellate and district courts around the country have struggled mightily with the question of whether retaliatory discharge is encompassed within those five seemingly unambiguous words in Section 1981: "to make and enforce contracts." This Court has not squarely addressed this reoccurring question, arguably contributing (albeit inadvertently) to the vacillation and uncertainty with its decisions in Sullivan v. Little Hunting Park and Patterson v. McLean Credit Union.
The petitioners, not surprisingly, make a textual arguments that racial retaliation is not actionable. This should be an interesting case because it pits a textualist reading of the statute against the fact that Section 1981 race discrimination claims have been read consistent with Title VII race claims in the past. 5-4 with Kennedy deciding the case is my prediction.
Two other employment discrimination case have already been granted cert. for this term. Paul Mollica provides the details: Federal Express Corp. v. Holowecki (06-1322) (whether an EEOC Intake Questionaire may be treated as a charge for purposes of filing an ADEA lawsuit) and Sprint/United Management Co. v. Mendelsohn (06-1221) (concerning the admissibility of anecdotal witnesses who claim that they also suffered discrimination during the same reduction in force).
And yet in another case, Gomez-Perez v. Potter (petition for cert), the question granted cert by the Court is whether federal employees have protection against retaliation for complaining about age bias in the workplace.
With four employment discrimination cases, one employee benefit case, and one public sector case, there is going to be another year which just goes to prove again how important labor and employment law has become in the legal world.