The Supreme Court's antiretaliation principle.

• Author: Moberly, Richard

ABSTRACT

In five cases issued during the last five years, the Supreme Court interpreted statutory antiretaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the common understanding of the Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional antiretaliation protection narrowly; an act that fits with the Court's pro-employer image but diverges from the antiretaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court's retaliation jurisprudence. In doing so, a persistent theme emerges: the "Antiretaliation Principle." This Principle advances the notion that protecting employees from retaliation will enhance the enforcement of the nation's laws. Interestingly, although the Court has used the Antiretaliation Principle for a half-century to strengthen statutory protections against employer retaliation, it also has demonstrated consistently that it considers the Antiretaliation Principle primarily a statutory, rather than constitutional, norm.

The Antiretaliation Principle explains the Court's recent cases and provides a reasoned and consistent standard against which they can be evaluated. Furthermore, the Supreme Court's Antiretaliation Principle provides important lessons for lower courts as they confront the need to protect whistleblowing employees from employer retaliation.

CONTENTS ABSTRACT INTRODUCTION I. THE PAST: THE SUPREME COURT'S ANTIRETALIATION PRINCIPLE A. Statutory Protection B. First Amendment Protection II. THE PRESENT: SIX RETALIATION CASES IN FIVE YEARS. A. Statutory Protection 1. Implied Retaliation Protection 2. Explicit Protection: Title VII of the Civil Rights Act of 964 B. First Amendment Protection C. The Antiretaliation Principle and the Recent Cases III. THE FUTURE A. The Supreme Court B. Lower Courts 1. Causation 2. Reasonable Belief CONCLUSION INTRODUCTION

In each of five recent cases involving statutory-based employee retaliation claims, the Supreme Court has upheld the employee's claim and expanded protections against employer retaliation. (1) A sixth employment retaliation case, however, which was based on an alleged violation of an employee's First Amendment rights, reached a dramatically different result. In Garcetti v. Ceballos, (2) the Court found in favor of the employer and severely restricted constitutional antiretaliation protection. (3)

Together these cases present a confusing and seemingly contradictory view of the Court's retaliation jurisprudence. On the one hand, the Court's holdings in the five statutory cases could indicate that the Court favors employees in retaliation cases--a conclusion that would strike many commentators as odd given the Court's decidedly mixed record of protecting employee rights over the past decade. (4) On the other hand, the Court's Garcetti opinion significantly narrowed government employees' protection when they blow the whistle on employer misconduct, (5) perhaps indicating a deeper resistance to retaliation protection. Moreover, as explained in more detail below, taken together, the Court's opinions appear untethered to any consistent judicial philosophy, often confounding commentators. (6)

This Article attempts to bring consistency and cohesion to this morass by placing these recent retaliation cases in the context of a half-century of Supreme Court retaliation jurisprudence. This process illuminates the Court's underlying rationale in retaliation cases generally, which I label the "Antiretaliation Principle." The Antiretaliation Principle differs from other justifications for retaliation protection because it focuses on the notion that protecting employees from retaliation will enhance the enforcement of the nation's laws. (7) Moreover, it both explains the recent Supreme Court cases and provides a reasoned and consistent standard against which they can be evaluated. Importantly, the Court's use of the Principle also offers guidance for the way courts ought to approach the issue of employer retaliation in the future.

Part I of the Article demonstrates that the Supreme Court historically has approached retaliation cases differently than typical employment matters. In employment cases, the Court often balances the employer's interests against the employee's interests. (8) In retaliation cases, however, the Supreme Court uses the Antiretaliation Principle to also consider society's interest in effective enforcement of the laws--an interest the Court believes can be advanced through strong antiretaliation protection for employees. (9) For the past fifty years, the Court applied this Principle consistently in statutory retaliation cases, but taken a slightly more cautious approach in First Amendment cases.

Prior to this Article, the Supreme Court's extensive case law regarding retaliation had never been examined through the organizing lens of the Antiretaliation Principle. Rather, commentators often examine these cases in isolation, through principles developed for the specific statute or constitutional provision under which the retaliation claim arose. For example, commentators examine retaliation cases as involving discrete subject matters such as discrimination, (10) the First Amendment, (12) or preemption. (12) Part I of the Article steps back from the "trees" of individual substantive issues and explains the "forest" of retaliation cases.

Part II examines how the Court relied on the Antiretaliation Principle, both explicitly and implicitly, in the six recent retaliation cases. Ultimately, the Principle explains the Court's current retaliation jurisprudence and provides a principled way to evaluate the Court's decisions: do these decisions advance the Court's own Antiretaliation Principle by enhancing the enforcement of law? As this Part explains, in the recent statutory cases, the Court furthered the Antiretaliation Principle by privileging it over other norms that many would have thought sacrosanct to this Court. By contrast, although the lone constitutional case explicitly references the Antiretaliation Principle, the rule adopted by the Court in Garcetti likely will undermine society's interest in law enforcement.

Identifying and explaining the Court's reliance on the Antiretaliation Principle has significant ramifications for the future of retaliation law, which I discuss in Part III. First, the Supreme Court granted certiorari in two cases for the 2010-11 Term that will test the boundaries of the Antiretaliation Principle. In Kasten v. Saint-Gobain Performance Plastics Corp., (13) the Court will examine whether the Fair Labor Standards Act's antiretaliation provision protects employees who file oral as well as written complaints. (14) Furthermore, Thompson v. North American Stainless, LP (15) presents the issue of whether Title VII's antiretaliation provision prohibits an employer from retaliating against a third party who is associated with an employee who engaged in protected conduct. (16) The Court could use the Antiretaliation Principle to broaden antiretaliation protections under these statutes, despite arguments that the statutory language at issue in each case seemingly excludes the employees' claims. (17)

Second, respecting the Court's view of the Antiretaliation Principle should cause lower courts to evaluate retaliation cases through this same lens. This perspective might impact a number of retaliation issues currently percolating. For example, courts have been struggling with the level of causation required by various retaliation statutes, (18) and the Antiretaliation Principle can help provide some guidance on this complicated issue. (19) Further, a focus on law enforcement would help courts interpret when a whistleblowing employee has a "reasonable belief" that an employer has violated the law, an issue that lower courts often have used to undermine statutory protection from retaliation. (20)

1. THE PAST: THE SUPREME COURT'S ANTIRETALIATION PRINCIPLE

   During the last fifty years of its retaliation jurisprudence, the Supreme Court has recognized that employees must be protected from retaliation in order to further the enforcement of society's civil and criminal laws. This "Antiretaliation Principle" allows the Court to examine antiretaliation protection as a law-enforcement tool that benefits society, rather than simply as extra protection for employees provided at a cost to employers. The Court makes three assumptions throughout its opinions to support the Principle: (1) employees are in the best position to know about illegal conduct by their employer or other employees; (2) employees will report this information if the law protects them from employer retaliation; and (3)employee reports about misconduct will improve law enforcement.

   Significantly, the Court has applied the Principle in statutory cases differently than it has in First Amendment retaliation cases. In statutory cases, the Court broadly interpreted explicit antiretaliation provisions and implied antiretaliation protections even when no specific provision existed. The Court's First Amendment retaliation jurisprudence, however, provides an outer limit of the Principle. Although the Court recognized the Antiretaliation Principle's importance in these cases, the Court also suggested that statutes, rather than the Constitution, might be the better source for antiretaliation protection.

   1. Statutory Protection

      Professor Clyde Summers once noted that labor law's purpose has always been to address the imbalance in bargaining power between employees and employers. (21) From this perspective, statutory and judicial employment protections exist to protect employees' "primarily non-economic interests in fairness, personal dignity, privacy, and physical integrity." (22) These...