And opponents of Justice Alito no longer should have great reason to fear of what his presence on the Court will do to the rights of employees in protected classes.
At the time of Justice Alito’s appointment to the Court, and even before he had been confirmed, I wrote about some fears that Senate Democrats had about Alito. Namely, they and other employee advocate groups feared that Alito was an overly strict constructionist who was unwilling to acknowledge that Congress had any more authority to regulate employment matters that was explicitly given to it.
Now, more than two years later, Alito has surprised employer and employee advocates alike, as the Court has handed down employment related decisions that favor employees. Alito sided with the majority in both cases.
In , No. 06-1431, the Court held that an employee can bring a claim for retaliation under Section 1981 of the Civil Rights Act of 1866, which prohibits discrimination in the making of contracts. In , No. 06-1321 , the Court held that an employee can bring a claim for retaliation under to the Age Discrimination in Employment Act (ADEA). Neither statute explicitly provides for a claim of retaliation, although the Court, by a 7-2 decision in CBOCS West and a 6-3 decision in Gomez-Perez, decided that the right to bring a claim for retaliation was inherent in the right to bring a claim for the underlying discrimination. Alito sided with the Majority on both cases, while Chief Justice Roberts sided with the majority in CBOCS West and the minority on Gomez-Perez.
While employee advocates are perhaps breathing a small sign of relief, employers may begin to wonder what the Roberts Court will now mean for employers and for the interpretation and enforcement of anti-discrimination laws.