Supreme Court Looking Again at Retaliation

Article excerpt

EMPLOYMENT LAW

New Supreme Court justices not only change how the panel makes decisions, they also influence which cases are put on the docket.

This month, the court will continue its increasing focus on employment law by tackling a topic that can cost companies millions of dollars-retaliation.

On February 20, the high court will hear a case that revolves around whether a worker can sue for retaliation under a federal discrimination law that allows for unlimited damages recovery.

In a separate case that isn't yet scheduled, the court will wrestle with the question of whether a worker who participates in an internal company investigation of harassment is protected from retaliation.

The court is again turning to employment law, an area in which it made major rulings last year on pay discrimination and retaliation.

James Burns, a partner at Reed Smith in Chicago, says the trend emanates from the court's two newest members-Chief Justice John Roberts and Justice Samuel Alito.

As appeals judges, they saw firsthand the proliferation of controversial workplace suits during the past decade.

"They want to resolve some of those issues," Burns says. "They are more familiar [than their court colleagues] with how employment cases work in practice because they've been in the trenches as an appeals court judge or a lawyer."

The stakes are high for companies, which have more to fear in retaliation suits than in discrimination cases.

"Juries find it easy to believe that employers retaliate," Burns says.

The crux of the case of Hendrick Humphries, a former Cracker Barrel employee, is whether he can bring a retaliation claim against the restaurant under what is known as section 1981 of the Federal Code. …