Supreme Court Cases on Discrimination and Retaliation

In 2011 and 2012, the Court has decided several important retaliation and discrimination cases.

The Supreme Court's retaliation and discrimination cases in 2011 and early 2012 continue to be a mixed bag, giving both employees and employers some wins. Here are the most important recent decisions:

  • Religious employers have a ministerial exception to discrimination laws. The Court found, for the first time, that religious employers cannot be sued under the Americans with Disabilities Act and other laws prohibiting discrimination by "ministerial employees." Because religious institutions must be free to decide who will preach their beliefs and teach their faith, the First Amendment prohibits the government from telling them whom they must hire or retain. (Our employment law blog has a detailed post on this case, Hosanna-Tabor v. EEOC.)
  • Employers can be liable for discrimination even if the decision maker doesn't have discriminatory intent. In this so-called "cat's paw" situation, one supervisor has a discriminatory motive, but a different supervisor makes the adverse decision (for example, to fire an employee). In a case involving discrimination against an employee because of his military service, the Court found that an employer is liable if a supervisor takes action with the intent of causing negative treatment of an employee and that supervisor's action is the proximate cause of such negative treatment. In other words, if the supervisor's discriminatory motive taints the decision making process and ultimately causes the employee to be mistreated, the company is liable. (Our blog also discusses this case, Staub v. Proctor Hospital.)
  • An employee can sue for retaliation based on his fiance's legal claims. In this case, the Court found that a man could sue for retaliation after he was fired because his fiance filed a sex discrimination lawsuit against their mutual employer. Even though one employee complained of discrimination and the other suffered the negative job consequence, the Court found that this is the sort of reprisal that could dissuade employees from asserting their rights. (See our blog post on the case, Thompson v. North American Stainless.)
  • Oral complaints can give rise to a retaliation claim. In this case under the Fair Labor Standards Act, an employee claimed that he was fired after making repeated oral complaints that the company time clocks were located in a place that required employees to clock in before donning their protective work gear, and to clock out before they took that gear off. As a result, employees were not paid for time that must be compensated under the law. The Court rejected the employer's argument that such a complaint must be in writing to form the basis of a retaliation claim. As long as the employee's complaint is sufficiently clear and detailed for the employer to understand it as an assertion of statutory rights, the employee is protected from retaliation. (Here's our blog post on Kasten v. Saint Gobain Performance Plastics Corporation.)