New Orleans Something very strange happened in the Supreme Court yesterday — perhaps Mercury is in retrograde? In two separate cases by decisive majorities the Supreme Court ruled in favor of workers! Given recent Court decisions American workers have every reason to feel shocked and awed at the willingness of the Supreme Court to actually provide some protection — in these instances against retaliation against filing age discrimination and other complaints.
This is all significant in an ironic way. Because the EEOC has become so toothless and ineffective in handling worker complaints of discrimination, it is often easier to file retaliation charges. Linda Greenhouse in the Times pointed out that these cases have soared:
Retaliation complaints filed annually with the Equal Employment Opportunity Commission doubled in the last 15 years to 22,000 from 11,000.
Congress has provided explicit protection against retaliation in two major federal statutes. One is Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and sex. The other is the provision of the Age Discrimination in Employment Act that applies in the private sector.
However, there is no such explicit protection in the portion of the age-discrimination law that applies to federal government workers. Nor is there explicit language in a post-Civil War-era statute that gives “all persons” the same right “as is enjoyed by white citizens” when it comes to making and enforcing contracts, such as contracts of employment. Those were the two statutes that the court interpreted on Tuesday.
The Court held though in these cases that there was federal age discrimination protect by importantly extending the weight of precedents in other decisions rather than based on Congressional action. This has been a battleground within the court on a number of cases, so there were many hopeful signs that the radicalism of the Supreme Court may have found its outer limits.
None of us can breathe easily yet, but at least we might be able to stop holding our breath!