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Legal protections are murky for whistle-blowers

While most of us may think federal employment laws protect us against retaliation in the workplace, it turns out they’re not a slam-dunk for workers.

Hedrick Humphries worked as a manager for a Cracker Barrel restaurant in Illinois and claims he was fired after reporting his boss’ racially offensive remarks and behavior to district managers.

Myrna Gomez-Perez, who had worked full-time as a postal worker Puerto Rico, filed an age discrimination complaint with the Equal Employment Opportunity Commission, and then, she claims, her managers reduced her hours as a result.

Both employees believe they were victims of retaliation, and they went ahead and sued their employers because of it.

While most of us may think federal employment laws protect us against retaliation in the workplace, it turns out they’re not a slam-dunk for workers.

This week, the Supreme Court will hear these two separate cases, and the high court’s decisions will likely impact many workers throughout the United States.

In all, the Supreme Court will be deciding on three retaliation cases this year, a significant number given that the court typically hears only about 75 cases each year, says Michael Gottesman, professor of law at Georgetown University Law Center.

“It’s significant they are taking so many,” says Gottesman, who moderated a panel discussion on the issue last week in Washington.

The third case involves Vicky Crawford, a former payroll coordinator for the metropolitan government of Nashville, Tenn. She claims she was fired because she cooperated with an internal company investigation of sexual harassment by another employee.

The cases are all quite different, but in all three the court must determine whether the claims of retaliation are indeed covered by existing labor laws.

In the case of Humphries, the question is whether he can legally claim retaliation under a particular anti-discrimination statute, one that has no limits on filing time limits or damages.

In the Gomez-Perez case, the question is whether government employees are protected from retaliation under the Age Discrimination in Employment Act, just like their private-sector counterparts.

And in the Crawford case, the court will have to decide if she can file a retaliation suit under labor law, even though she did not herself file a complaint about the harassment but merely participated in an internal investigation.

Retaliation is a growing problem. According to the EEOC, retaliation claims jumped to 22,555 in 2006 from 11,096 in 1992.

“Moreover, retaliation charges have also consistently increased as a percentage of the EEOC's total private sector caseload each year," to 30 percent in 2006 from 15 percent in 1992, says David Grinberg, a spokesman for the EEOC.

The Humphries case is significant for people of color because it hinges on a part of the Civil Rights Act of 1866 called section 1981 that protects workers against race discrimination in particular and whether victims can use this section to sue for retaliation, Gottesman says.

Under the general anti-discrimination act that governs the workplace, known as Title VII, workers sometimes find the time limit on filing a charge has expired by the time they’re ready to come forward and find a lawyer.

Under Section 1981, if approved by the high court, workers generally would have one to three years to file a claim, rather than the 180 to 300 days allowed under Title VII. The other issue is caps on damages, which under Title VII range from $50,000 to $300,000, depending on the size of the firm. Under 1981, there are no limits on damages.

The case known as Gomez-Lopez v. Potter would most affect federal employees who believe they were retaliated against "because they opposed age discrimination or participated in an investigation of alleged age discrimination,” Gottesman explains.

“Federal employees who suffer retaliation relating to other forms of discrimination have the same rights as private employees,” he notes. “It’s only retaliation relating to age discrimination that is arguably subject to a different rule.”

If the Supreme Court finds in the government's favor, he says, federal employees will not be able to sue in such cases but will have to bring their cases in civil service proceedings "where there are no juries and the remedies are much lower.”

The court is not expected to announce its decision in the two cases until April.

In the case of Crawford vs. the Nashville metro government, a lower court held that the employee, who did not bring a charge of sexual harassment but merely confirmed an incident in an internal investigation, did not enjoy protection against retaliation.

“Retaliation in sexual harassment contexts is a frequent occurrence, because these are emotionally charged circumstances and often the supervisor has the employer’s ear and asks that the informant be fired,” Gottesman says.

If the Supreme Court sides with the employer, says Jocelyn Frye, general counsel for the National Partnership for Women & Families, it will have a chilling effect on individuals who are victims of sexual harassment.

“This has broader implications for women in the workplace,” she says, because it creates a disincentive for employees to participate in internal investigations.

So where will the court come down on the issue of retaliation against workers?"

Many labor advocates are worried, especially considering recent decisions such a case involving Goodyear Tire & Rubber Co. last year, where the court limited workers’ ability to sue for discrimination.

Gottesman says he is hopeful, even though he thinks “the Court is trying to derail worker rights.”

The conservative-led court "has acted quite differently in retaliation cases," Gottesman says. "I think it reflects an antipathy, shared by the conservatives, toward those who would punish people for asserting legal rights.”