The Supreme Court made up some new laws on Tuesday because it thought they were a good idea, as the Washington Post’s editorial today notes.
Some civil rights laws not only ban discrimination, but also retaliation against those who complain about what they perceive to be discrimination. Others just ban discrimination, and say nothing about retaliation.
In two cases it decided on Tuesday, the Supreme Court ruled that civil-rights laws don’t even need to mention retaliation to ban it, since retaliation is a kind of discrimination. That’s factually untrue — for example, an employer doesn’t have to be a racist to resent an employee who erroneously accuses her of racial discrimination — and the court’s ruling begs the question of why some civil rights laws expressly ban retaliation, not just discrimination. Why did the legislators who wrote those laws bother to separately ban both retaliation and discrimination if retaliation is just a kind of discrimination?
Congress knows how to ban retaliation when it wants to. Title VII of the Civil Rights Act of 1964, which covers employers with more than 15 employees, expressly bans both discrimination and retaliation. But other laws, such as 42 U.S.C. 1981, which bans racial discrimination and anti-alien discrimination by even the smallest employers or service providers (including your kid’s lemonade stand), have language that only bans discrimination, not retaliation.
The Supreme Court said Tuesday said that that didn’t matter, and ignored the textual differences between the various laws, in its rulings in CBOCS West, Inc. v. Humphries, which judicially rewrote 42 U.S.C. 1981, and Gomez-Perez v. Potter, Postmaster General, which judicially rewrote the provisions of the Age Discrimination in Employment Act (ADEA) covering federal employees (civil-service laws already expressly give federal employees protection from many forms of retaliation, but their remedies are not as broad or generous as the ADEA’s).
Ironically, in a past decision, the Supreme Court has claimed that retaliation and discrimination are inherently different, in ruling that limits on discrimination claims contained in laws that ban both discrimination and retaliation shouldn’t be applied to retaliation claims. The inconsistency between that past case (which I criticized on other grounds) and Tuesday’s decisions is right out of Alice in Wonderland.
I’m not surprised by the rulings, though. It may seem ironic, but once upon a time, I used to bring retaliation claims under the (textually non-existent) ban on retaliation contained in 42 U.S.C. 1981. The life of a lawyer often involves suing over non-existent legal rules. Many lawyers’ livelihoods depend on it. (Indeed, anticipating just such judicial activism, I have counseled public employees disciplined for criticizing unlawful racial quotas to sue for retaliation under 42 U.S.C. 1981, in addition to suing under the First Amendment).
Carter Wood of the National Association of Manufacturers gives his take on the Court’s rulings here. The National Federation of Independent Business reacts here, pointing out that the rulings open the door to stale retaliation claims (federal laws expressly banning retaliation have short deadlines, while 42 U.S.C. 1981, which the Supreme Court judicially rewrote to include a ban on retaliation, has a long four-year deadline).