Court eases retaliation proof requirement
UPDATE 10:31 a.m.
The Supreme Court ruled on Thursday that a worker complaining of retaliation on the job for having complained about bias may sue even if that individual has not suffered an ultimate adverse action such as firing or denial of promotion. Reassignment to a less attractive job or a temporary suspension without pay can constitute retaliation, the Court said in deciding Burlington Northern v. White (05-259). (The Court’s decision is available here; Justice Samuel Alito’s concurring opinion is here.)
The disagreement within the Court — between eight Justices and Alito — centered on the scope of the anti-retaliation provision in Title VII. The Court concluded that workers claiming retaliation could sue not only over action taken against them in the workplace, on their wages, hours and working conditions, but also acts by the employer “outside the workplace.” The Court cited as examples of this broader kind of retaliation a failure to investigate threats against an FBI agent who had complained and filing false criminal charges against an employee who had complained. Alito argued that the concept should be confined to workplace action. Alito, who joined only the result, also objected to the majority’s test of how severe retaliatory action must be; the majority said it would embrace acts that might dissuade a “reasonable worker” from complaining about workplace bias, even if the action did not go so far as firing or denial of a promotion.
The Court chose to avoid a ruling on the merits on what had appeared to be a significant patent case — Laboratory Corporation of America v. Metabolite Laboratories (04-607). The appeal had asked the Court to rule on the patentability of a process of detecting a scientific relationship beween a medical test result and a medical condition in a patient. After hearing argument in the case, the Court dismissed the petition as “improvidently granted.” The vote was 5-3, with Chief Justice John G. Roberts, Jr., not taking part. Dissents from such orders are not common. In this case, Justice Stephen G. Breyer, joined by Justices David H. Souter and John Paul Stevens, filed a 15-page dissent.
In a 7-2 decision, the Court ruled that it does not violate due process for a jury in a criminal trial to be instructed that an accused claiming the defense of duress or coecion has the burden to prove that defense by a preponderance of the evidence. The case was Dixon v. U.S. (05-7053). (The Court’s opinion is here; the concurring opinions of Justices Kennedy and Alito are here and here; Justice Breyer’s dissent is here.)
In another ruling, the Court decided that prison inmates must meet any filing deadlines in order to satisfy the requirement of the Prison Litigation Reform Act that they exhaust remedies before pursuing a civil rights lawsuit challenging prison conditions. The ruling, written by Justice Samuel A. Alito, Jr., came on a 6-3 vote in Woodfod v. Ngo. Alito wrote that the exhaustion mandate includes satisfing all procedural rules, and an inmate does not accomplish exhaustion if an administrative complaint is filed too late or is otherwise procedurally flawed. (The Court’s opinion is available here; Justice Breyer’s concurring opinion is here; Justice Stevens’s dissent is here.)
By a vote of 8-1, the Court ruled that a change in federal immigration law in 1996 restricting the rights of aliens who return illegally to the U.S. after being deported applies to those who came back before the law was enacted. At the same time, however, the Court decided that the provision has no retroactive effect on an individual who had been deported, had returned to the U.S., and then remained for 20 years. The change in the law, the Court said, imposed no burden on him, the Court said, concluding that it was his decision to remain in the country after reentry that violates the law, and not some past act. The decision came in the case of Fernandez-Vargas v. Gonzales (04-1376). (The Court’s opinion is available here; Justice Stevens’s dissent is available here.)
The Court has finished with issuing merits decisions for the day. Ten more rulings are expected before the end of the Term this month, with the next announcement of opinions due on Monday.
Regarding Laboratory Corp, the case DIG’d, that seems to remind of a capital case, whose name momentarily escapes me, that Edward Lazarus wrote about in Closed Chambers, wherein the case was DIG’d because the court was so severely fractured on it; I think in the end, JPS scuttled his opinion and the wrangling ended up in the placid-sounding DIG. But given the dissent from Laboratory Corp, is there anything to be read in the tealeaves here, Lyle?
Comment by Simon — June 22, 2006 @ 11:15 am
Stevens’ dissent in Fernandez-Vargas is pathetic. The paean to how the US has benefited from the illegal alien’s presence is ridiculous. There is a concept in the law called the officious intermeddler, i.e., someone who confers “benefits” on another without the other person’s consent. The officious intermeddler is not entitled to any recovery on the basis of his providing benefits. It is difficult to see how Mr. Fernandez-Vargas is entitled to any credit for his activities in the US.
Comment by federalist — June 22, 2006 @ 12:07 pm
I find the Court’s Title VII decision troubling. The Court appears to have imported the test applied in the First Amendment context for retaliatory conduct against government employees (where even the failure to invite an employee to a coworker’s birthday party is sufficient to state a violation). I had always thought that test way too lenient and had hoped the Court would tighten it. Instead, the Court has imported the test from its First Amendment jurisprudence into its Title VII jurisprudence, meaning that many more claims that objective observers will find trivial will be actionable. There usually will be no lost wages, and so we will have a federal case over emotional distress damages and punitives each and every time.
Comment by Steve — June 22, 2006 @ 12:37 pm
The Burlington Northern ruling expanding the ability to sue for retaliation contains a standard that, as Justice Alito notes in his concurrence, has little basis in Title VII’s text.
The justices love retaliation plaintiffs, it seems, so the statutory text is no obstacle.
Even justices who usually advocate textualism as a means of judicial interpretation often abandon it when it would conflict with a broad reading of Title VII’s retaliation provisions.
Take Justice Thomas’s opinion for the unanimous court in Robinson v. Shell Oil Co., which interpreted Title VII’s reference to employees as including former employees, contrary to its plain text, which covered only employees, not former employees, and contrary to a federal appeals court ruling reaching the contrary conclusion based on that text.
People claim the Supreme Court is conservative, and on a few employment law issues (affirmative action, disparate impact), it may have been relatively conservative for a brief period in the late 1980’s.
But since then, it has been a pretty liberal court on employment law. Even relatively liberal rulings have gotten overturned by subsequent decisions.
(For example, the few limits on employer liability recognized by the 1986 Meritor decision, which favored plaintiffs by recognizing a broad, vague “hostile environment” theory of liability, were overridden by the subsequent 1998 decision in Faragher, as Faragher’s counsel observed in noting that Meritor had been partly overruled by Faragher).
Comment by Hans Bader — June 22, 2006 @ 12:50 pm
With Chief Justice Roberts having recused himself from LabCorp v. Metabolite, is it possible that one justice could have bolted from Justice Breyer’s camp in order to avoid a 4-4 split, thus creating the creating the 5-3 majority for the DIG order?
Comment by Steven Purdy — June 22, 2006 @ 1:09 pm
Hans, you must be joking. Alito’s concurrence has the hallmarks of what conservatives usually call “judicial activism” — taking the plain text of a statute and distorting it to favor his policy views.
He even admits that his take is not “This is not, admittedly, the most straightforward reading of the bare language” of the statute, because, in his view, reading the language as it is written would result in too many retaliation suits for what he deems insufficient reasons.
I think this is an interesting opinion because it tends to show that Alito is not a Scalia/Thomas clone, but is instead is more properly seen as a conservative “judicial activist.”
Comment by td1976 — June 22, 2006 @ 1:16 pm
Glad to see that none of the majority opinions released today used legislative history. Glad to see that the Court is continuing towards a more principled approach of statutory interpretation.
Comment by moxfulder1 — June 22, 2006 @ 3:09 pm
Instead, the Court has imported the test from its First Amendment jurisprudence into its Title VII jurisprudence, meaning that many more claims that objective observers will find trivial will be actionable. There usually will be no lost wages, and so we will have a federal case over emotional distress damages and punitives each and every time.
Interpreting the text so literally that it reaches results in contradiction to plain Congressional intent is called judicial activism. Congress was not stupid when it passed these statutes and it knows full well that they have a deterrent effect in social reality. That deterrent effect cannot exist if the statute is read so narrowly as to only kick in once a specific suit has already been filed. I was disappointed by Justice Alito’s overly cramped opinion, especially because it is weakly argued. I suspect one of his elderly partisan clerks drafted it while the Justice was out to a baseball game.
Comment by Commentator — June 22, 2006 @ 4:07 pm
To a layman who read the briefs (esp. the USSG one) and the law, LabCorp v. Metabolite seemed to be headed for a summary reversal. If this is not a patent for a “phenomenon of nature”, I can’t imagine what would be — why would the Court decline to say so?
Comment by Lior — June 22, 2006 @ 4:20 pm
I find the Court’s Title VII decision troubling. The Court appears to have imported the test applied in the First Amendment context for retaliatory conduct against government employees
I’m not sure that’s quite fair. First,the court noted that retaliatory actions must be “materially adverse”– even stating that a “reassignment of job duties is not automatically actionable.” Such “materially adverse” language is not in the First Amendment standard.
It is true that the court did place a great deal of emphasis on deterrence, which resembles the First Amendment test. However, the Court probablly did so in light of the fact that the EEOC and three circuits have embraced a deterrence-based approach without it leading to the kind of de minimis problems that you observe occuring in the First Amdnemnt context.
The justices love retaliation plaintiffs, it seems, so the statutory text is no obstacle.
Hans, I encourage you to read the statute. Standing on its own terms, 704(b) would apply to all retaliatory acts– because it does not provide any explicit limitations on its reach. As a result, the pure textualist interpretation is the one the respondent (plaintiff) urged actually. So I don’t understand your unsubstantiated argument that textualism would have led a more defendant-friendly result.
Comment by bayblogger — June 22, 2006 @ 4:26 pm
Hans must think literalism = textualism. But he does not explain why Scalia and Thomas failed to join Alito’s concurrence.
Comment by Commentator — June 22, 2006 @ 5:31 pm
For those of you who qouted my remarks as urging a narrower construction of the statute for policy reasons, I did not intend to advance such an argument. In fact, if interpreting the statute literally leads to many more retaliation suits than Congress wanted, Congress knows how to fix its own mess. The Court isn’t being activist for applying the text literally; rather, it is being quite restrained.
I simply question whether a retaliation suit based on no demotion, firing, harassment, etc., is really what Congress intended. Only further Congressional action (or inaction) will tell us for sure.
Comment by Steve — June 22, 2006 @ 6:05 pm
Stephen Purdy speculated that in LabCorp v. Metabolite, “is it possible that one justice could have bolted from Justice Breyer’s camp in order to avoid a 4-4 split, thus creating the creating the 5-3 majority for the DIG order?”
Well, a 4-4 split and a DIG have the identical practical effects: the decision below remains in place, but the action has no precedential value. However, a 4-4 split usually produces nothing more than a one-sentence order, while DIGs sometimes do produce concurrences and/or dissents. Breyer’s dissent suggested that some justices saw procedural or jurisdictional obstacles that would prevent them from reaching the merits.
It’s a pity this case didn’t produce a reversal, as there’s a pretty good argument that the Federal Circuit got it wrong.
Comment by Marc Shepherd — June 22, 2006 @ 6:44 pm
The canon of constitutional doubts also counsels in favor of an limited interpretation of what constitutes retaliation under Title VII.
As Judges Kozinski and Kleinfeld of the Ninth Circuit, and Justice Charles Fried of the Massachusetts Supreme Judicial Court, have observed, allowing any negative response by the accused to charges of discrimination to be classified as retaliation raises serious First Amendment issues.
If a complainant accuses someone of discrimination or harassment based on thinly grounded claims, the complainant should not be surprised when the accused takes umbrage, and should not expect the accused not to publicly defend him or herself or not to limit future interaction with the complainant.
Setting the bar low to what constitutes “retaliation” (treating all adverse commentary as retaliation) opens the door to retaliation claims based on consitutionally protected speech by the accused defending himself or herself, under the theory that such speech in opposition dissuades the complainant from bringing charges of discrimination. See, e.g., Bain v. City of Springfield.
That’s another reason to define retaliation more narrowly as Justice Alito does in his concurrence.
Comment by Hans Bader — June 22, 2006 @ 8:52 pm
I applaud the SC on the Title VII case. One thing I think that lawyers forget is what the day to day working world is like. It is nothing like a law firm, for sure. As Justice Holmes perfectly noted, law is not simply a logical exercise; it is an exercise informed by the experiences of people of good sense.
The fundamental fact is that Title VII is not about protecting workers at all. It is about protecting good managers from bad managers. It is a tool of management, by management, for management. Anyone involved in EEO law understands this as a matter of experience. The idea about managers being human is utter nonsense. They are getting paid to be managers, not to be human beings. If a wanted a human being as a manager, I would get joe dumddumb off the street and pay him $5 an hour. Managers are supposed to be better than their employees; if not, they have no call to hold the additional power and responsibility that being a manager requires.
The current ruling is a good ruling because it realizes that since most of the formal tools have already been taken away from poor managers, they have now resorted to informal ones. But formal or informal, the net result is the same: an atmosphere of fear. This, as any intelligent manager knows, is not the atmosphere that rings in the dollars, at least not in a economic system that condemns outright slavery.
As a former business manager I applaud this ruling. It is good for business and good for America.
Comment by Daniel — June 22, 2006 @ 9:27 pm
Actually, Congress can’t fix its own mess if every time it re-writes a statute, an activist judge underinterprets it as if it has no impact on reality. And, the concern of 8 members of the Court was that there would be too few suits, not too many. The greater the number of potential suits, the greater the deterrent effect. Alito was trying to dampen the real-world impact of the statute. He was interfering with Congressional intent, not furthering it. That is not fidelity to anything but blind ideology.
Comment by Commentator — June 23, 2006 @ 1:27 am
Hans, again, give me a break. Did you actually read the opinion? It doesn’t allow for retaliation suits based on an accused harasser’s “taking umbrage, “publicly defending himself” or other such nonsense. It expressly does not allow retaliation suits for “any negative response by the accused” or that “all adverse commentary” is retaliation.
In fact, the opinion does the opposite. It specifically states that things like “the cold shoulder” are not materially adverse and do not count as retaliation.
Furthermore, the “constitutional doubt” question has absolutely no applicability on these facts. The woman was kicked off a more prestigious job and suspended without pay because she complained about harassment. No speech issues there.
If some court were faced with speech-related retaliation, the statute might be interpreted as excluding pure-speech based retaliatory acts so as to save the constitutionality of the statute. Cf. Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (excluding from consideration evideidence of allegedly retaliatory act that was pure speech supporting accused harasser). But it doesn’t favor the meat-cleaver approach you put forth, in removing protection for the countless acts of non-speech related retailiation because it’s possible that a speech-related claim might be brought someday.
Comment by td1976 — June 23, 2006 @ 9:29 am
Yes, I did read the opinion in the Burlington Northern Title VII case, which construed the reach of Title VII’s retaliation provisions quite expansively.
I wasn’t relying on the canon of constitutional doubts to criticize the majority’s interpretation of Title VII’s retaliation provision.
I was relying on it to reject the even more expansive interpretation of Title VII’s retaliation provision advocated by the plaintiff, under which just giving a plaintiff a could shoulder might well constitute “retaliation.”
The plaintiff might well prove retaliation even under my more limited reading of Title VII’s retaliation provision. (Even Justice Alito’s concurrence, which adopted a more limited reading of Title VII’s retaliation provision than the majority, concluded that the plaintiff in Burlington Northern might be able to prove retaliation).
Comment by Hans Bader — June 23, 2006 @ 10:50 am
The plaintiff took the position of the EEOC, found in its compliance manual, that the anti-retaliation law “prohibit[s] any discrimination that is reasonably likely to deter protected activity.” EEOC Compl. Man. ยง 8-II.D.3. The “cold shoulder” is absolutely NOT reasonably likely to deter protected activity, and this is exactly what SCOTUS said in its opinion.
Do you have a cite for the proposition that plaintiff wanted all acts, no matter how trivial or petty, to count for retaliation? You’re creating a strawman for ideological purposes. It might be more convincing if you didn’t exaggerate what’s really going on. The statutory language of the anti-retaliation provision prohibits discrimination, period, unlike the immediately-preceeding anti-discrimination provision which prohibits only discrimination in the terms and conditions of employment. Even a layman could see that the retaliation provision is not limited in the way you favor.
The Court–admirably joined by Scalia and Thomas, showing that their commitment to plain-text reading does not extend only to the extent it coincides with their policy preferences–followed the law as written. The Congress is the proper body to limit the retaliation law, not the Court. Alito’s opinion shows that he thinks he can rewrite *a statute* to suit his idea of what proper public policy would be. He admits as such. That’s activism.
Comment by td1976 — June 23, 2006 @ 11:09 am
*** Do you have a cite for the proposition that plaintiff wanted all acts, no matter how trivial or petty, to count for retaliation?***
I haven’t read the respondent’s brief, but according to Justice Alito (p.2), respondent “staunchly defends” the view that the term “discriminate” in Title VII’s retaliation provision should be read literally to cover any form of differential treatment. Both the Court and the concurring opinion quite properly reject that unbounded intepretation. But, in so doing, both opinions are necessarily construing an ambiguous statute to reach the result most consistent with their understanding of congressional intent and, yes, sound policy. You can call this activism if you like, but I would prefer to call it judging. It’s what courts are supposed to do.
Comment by madisonian — June 23, 2006 @ 1:42 pm
And so long as you consider it “judging” whether it’s a “conservative” or “liberal” judge writing it, I’d agree. Activism is code-speak for substantive disagreement with court decisions; very often the first to cry “activism” over a liberal or moderate judge’s mention of policy is dead silent when a conservative judge like Alito does the same thing.
Comment by td1976 — June 23, 2006 @ 3:05 pm
Actually, I don’t substantively disagree with Alito’s concurrence. Were Congress to pass the statute that Alito drafted in his concurrence I’d have little problem with it. But I think Alito’s rewriting of the statute is activist because it is clearly an unwarranted act. Congressional intent as reflected in the statute is clear. Furthermore, Alito’s vaunted craftmanship is nowhere to be found; his concurrence is very clumsily. A more artfully drafted opinion in a closer case, i.e., one where the statute were not obviously inconsistent with Alito’s interpretation, might earn my support. But no amount ideology would take me this far. Alito’s concurrence is nothing but polemical dicta screeching at Congress to amend its law.
Comment by Commentator — June 23, 2006 @ 3:45 pm