Emily Bazelon has a nice piece in Slate setting the stage for CBOCS West v. Humphries, the employment discrimination case the Supreme Court will hear tomorrow. Essentially, a supervisor at a Cracker Barrel make racist remarks and treated black employees (including the plaintiff, Hendrick Humphries) unfairly. Humphries complained and was promptly fired. Even the Bush Justice Department thinks he's entitled to damages. But because the civil rights statute in question doesn't explicitly apply to retaliation for complaining about racial discrimination (as opposed to the discrimination itself), Bazelon believes the Court likely won't be favorably inclined towards him:
Unless Kennedy changes his course, which is doubtful, the court's right
flank could use this case not only to block suits for retaliation like
Humphries', but also to set the stage to make it ever harder to sue for
discrimination under other laws. You can imagine the opinion to be
written this spring, perhaps by Alito or Chief Justice John Roberts.
There will be no need to get fiery--that's not these new justices'
style. Instead, it can all seem unremarkable and straightforward:
Congress didn't say retaliation, so Hendrick Humphries, you
don't get your retaliation suit. Oh, and by the way, we look forward to
citing this opinion the next time a screwed-over plaintiff comes around.
Of course Congress could always just revise the law to clarify what it meant, but in practice that usually winds up being more difficult than it sounds. Last year, when the Court limited the reach of anti-discrimination law in the Ledbetter case, leading Democrats in Congress announced their intention to set things straight--except the bill, after passing the House, got held up in the Senate and never even made it to the president's desk. Ted Kennedy's going to give it another shot this year, but the point remains that given Congress's innate tendency toward gridlock, it creates lots of problems when the Court interprets anti-discrimination statutes in dubious ways.
--Josh Patashnik