Proving a discrimination claim can be difficult for plaintiffs' attorneys. Barring a "smoking gun" e-mail or a supervisor so ignorant of the law that he spouts off offensive comments in front of employees, an ulterior motivation for a negative employment action is often hard to establish.
Proving retaliation, on the other hand, can be as simple as pulling out a calendar. An employee complains that her supervisor is biased against her because of her sex, race or age. A short time later, she is terminated, demoted or transferred to a less desirable
shift or assignment. Bingo. That employee alleges that proximity of the employment action to her complaint proves retaliation--even if her original discrimination claim is groundless. And retaliation claims are easy to sell to juries, who recognize the human instinct to take revenge when someone attacks you.
In upholding the 7th Circuit, the Supreme Court majority leaned on stare decisis, noting that several other circuits have allowed retaliation claims under the disputed section and that the high court had previously extended a companion law, Section 1982, to include retaliation. Writing for the majority, Justice Stephen Breyer said the fact that the statute does not expressly mention retaliation "is not sufficient to carry the day." In dissent, Justice Clarence Thomas scolded his colleagues: "Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the fig leaf of ersatz stare decisis."
Some court observers think the decision was predictable, based on the court's 2006 ruling in Burlington Northern v. White. That decision expanded what kinds of actions an employee could claim as retaliation--not just firing or demotion, but even a change in job responsibilities or hours. Anything that would dissuade a reasonable worker from filing a discrimination claim is retaliation, the court said.