On May 27, the Supreme Court held that two civil rights laws prohibitretaliation against employees who complain about discrimination, even though neither law actually mentions retaliation. In CBOCS West, Inc. v. Humphries, the Court held that a restaurant employee could sue his employer for retaliation under Section 1981 of the Civil Rights Act of 1866 — a law that prohibits race discrimination in employment, but does not mention retaliation. In Gomez-Perez v. Potter, the Court similarly held that the federal-sector provisions of the Age Discrimination in Employment Act prohibit retaliation, even though they also are silent on retaliation. The Court reasoned that retaliation is simply another form of discrimination made unlawful by the two laws.
While Gomez-Perez applies only to federal employees, Humphries will impact private-sector employers in two ways: first, unlike Title VII, Section 1981 has no damage caps and for a plaintiff, the sky is the limit; second, while Title VII does not apply to employers with under 15 employees, Section 1981 applies to all employers regardless of size.