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May 27, 2008
Big Day at Supreme Court for Employment Retaliation Cases
A very good day from the standpoint of employees.
The Court issued decision in Gomez-Perez v. Potter, 06-1321 (holding (6-3) that Section 633a(a) of the ADEA prohibits retaliation against a federal employee who complains of age discrimination.) and CBOCS West, Inc. v. Humphries, No. 06-1431 (holding (7-2) that Section 1981 encompasses retaliation claims).
Shortest Secunda analysis ever: yeah! (I was thrown a little when I saw Alito was the author of the Potter opinion and felt real good when Breyer was the author of CBOCS.
Wow, I'm going to be smiling next time I pass a Cracker Barrel restaurant! And guesses who the two non-activist dissenters were in the cases?
Finally, all my tea-leaf reading was dreadfully off in both cases (happy to say so).
PS
May 27, 2008 in Employment Discrimination | Permalink
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Comments
I was happy to see these decisions come down. I had followed Gomez-Perez, including mooting the plaintiff's argument and reading the transcript of the argument and I shared Paul's fear for the outcome.
Two factors may have influenced these decisions: 1. Justice Alito, author of Gomez-Perez, may have been stung by the hostile reaction to his opinion in Ledbetter. 2. The government was opposed to finding retaliation as to federal employees in Gomez-Perez but supported the finding that retaliation was part and parcel of section 1981. It is interesting that Chief Justice Roberts dissented in Gomez-Perez but joined the majority in the Cracker Barrel case based on 1981.
While I am very happey with the results, the majority opinions in both cases noted that neither party argued that Sullivan and Jackson, the two precedents that were crucial to the Court in both cases, should be overruled. So, a slight caution for the future.
Posted by: Mike Zimmer | May 27, 2008 5:03:42 PM
