Tuesday, September 21, 2010
Richard Moberly (Nebraska) recently posted an article about the Supreme Court's retaliation jurisprudence: The Supreme Court's Anti-Retaliation Principle. It will be published in Volume 61 of the Case Western Law Review in January 2011.
Here is the abstract:
In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing so, a persistent theme emerges: the “Anti-Retaliation Principle,” which the Court uses to advance the notion that protecting employees from retaliation will enhance the enforcement of the nation’s laws. The Court has used the Anti-Retaliation Principle for a half-century to strengthen statutory protection from employer retaliation. However, the Court also has demonstrated consistently that it considers the Principle to be primarily a statutory, rather than a constitutional, norm. The Anti-Retaliation Principle explains the recent cases and provides a reasoned and consistent standard against which they can be evaluated. Furthermore, the Supreme Court’s Anti-Retaliation Principle provides important lessons for courts as they confront the need to prevent employers from retaliating against employees who report illegalities.
Of considerable interest is that Richard added some thoughts about the two retaliation cases that will be decided by the Supreme Court this Term: Kasten v. Saint-Gobain Performance Plastic Corp. and Thompson v. North American Stainless, LP.