On Wednesday, the Supreme Court heard the last argument of the 2012-13 Term. Although the event passed almost unnoticed, even by court-focused bloggers and journalists, the Court’s forthcoming decision in this case could result in a material lowering of protections for workers fired or otherwise adversely treated by employers in retaliation for complaining or speaking out against unlawful discrimination on the job. 

The case, University of Texas Southwest Medical Center v. Nassar, came to the Court via a petition for certiorari by an employer, Texas Medical Center, from a Fifth Circuit decision affirming a jury verdict in favor of Dr. Naiel Nassar ($3.6 million in back pay and compensatory damages, reduced by the District Court to the statutory cap of $300,000).  The jury upheld Dr. Nassar’s claim that he had been discriminatorily pushed out of (“constructively discharged from”) his position at the Center by a supervisor who, among other things, had observed in his presence that “Middle Easterners are lazy,” and then, in retaliation for Dr. Nassar’s complaining about the supervisor’s discriminatory remarks, blocked an affiliated medical facility from giving him a new job.  The Fifth Circuit reversed the constructive discharge finding but upheld the retaliation claim. 

Broadly stated, the question at the core of Dr. Nassar’s case is whether the Court will continue to give employees who speak out against job discrimination the same fulsome protection that victims of racial, gender, and national origin discrimination are entitled to under the Civil Rights Act of 1964.  In recent years, a long line of cases have ensured robust protection for those who have been victims of reprisal for complaining of workplace discrimination violations – including  Jackson v. Birmingham Board of Education (2005), Burlington Northern & Santa Fe Ry. Co.v. White (2006), Gomez-Perez v. Potter (2008), CBOCS W., Inc. v. Humphries (2008), and Crawford v. Metropolitan Gov’t of Nashville & Davidson County (2009).  In a number of these cases, sweeping majorities recognized the basic point that protection against retaliation is critical to prevent unlawful discrimination in the work place.  Now, it appears that the conservatives on the Roberts Court may renounce this basic idea and impose a new, higher standard of proof on plaintiffs seeking redress of workplace retaliation, foreclosing retaliation claims based in part on legitimate motives and in part on discriminatory motives.

At Wednesday’s oral argument in Nassar, members of the conservative bloc seemed ready, for the first time in the Court’s history, to treat retaliation as categorically different from, “secondary” to, and deserving of a lower measure of protection than,  a substantive on-the-job discriminatory act.  In the above-noted retaliation cases, majorities of the Court had emphasized that the substantive anti-discrimination bar of Title VII of the 1964 Civil Rights Act (and similar civil rights laws) “depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses,” and that, indeed, “fear of retaliation is the leading reason why people stay silent.”  But in Wednesday’s oral argument, the Court’s conservative Justices sounded a different note.   As Chief Justice Roberts put it, “the protection against discrimination – race, color, religion, sex – sets forth the basic principle of fair and equal treatment,” but “anti-retaliation is more functional . . . linked together but at different levels.”   Likewise, Justice Alito suggested that Title VII’s basic prohibition on discrimination, which forbids employers from taking race, national origin, or gender into account in employment decisions, is fundamentally different from the separate retaliation prohibition, which requires a company to ignore a charge of discrimination made by the employee against the company.  As he put it, “it’s very difficult for the employer to say: I’m going to take this completely out of my mind.” 

The Court’s liberal Justices skewered this interpretation of the Civil Rights Act of 1964.  As Justice Ruth Bader Ginsburg observed, it’s always been the case that the prohibitions on discrimination and retaliation “travelled together, whatever the standard is for discrimination is the same for retaliation.”   And as Justice Kagan pointedly observed, “whatever the standard is, the standard is the same for both, and there’s no statute in which the two have been divorced.”  Nevertheless, the conservatives Justices paid little attention to this basic, well-established principle of federal civil rights law.   

At the argument, the merits of Dr. Nassar’s case were debated principally in terms of rival interpretations of the text of Title VII.  But the conservative Justices’ main argument for watering down the protection against retaliation was the claim, stressed by the employer and its amici, including the United States Chamber of Commerce, that businesses need extra legal protection against baseless charges of reprisal by underperforming employees fearful of legitimate adverse disciplinary actions.  In the specific case actually before the Court, the record strongly backed the jury’s conclusion that Dr. Nassar’s claim of unlawful retaliation was no sham.  But the evidentiary smoking guns in his favor were not mentioned at all during the oral argument.  The employer’s lawyer, Daryl Joseffer of King & Spalding, managed to keep the justices focused on the hypothetical specter of rampant worker abuse that might follow if they let stand the jury’s judgment for Dr. Nassar. 

This Term at the Supreme Court is one of the most important for the protection of equality.  With blockbuster decisions expected on affirmative action, voting rights and marriage equality, this Term’s rulings will shape the meaning of equality in the United States for years to come.  It would be easy to lose sight of Nassar among these likely landmark rulings.  But Nassar deserves to be watched.  The Court’s forthcoming ruling in this case will be an important test of whether the Justices will continue to respect the fundamental principle, enshrined in the Civil Rights Act of 1964, that basic legal equality in the workplace demands robust protection against retaliation.