"Retaliation": Another Job Security Weapon
February 19, 2008

Irvine, CA--The Supreme Court hears oral argument this week in two cases that will determine whether blacks and over-40 workers may sue for "retaliation" under federal employment discrimination laws.

In the case of CBOCS West, Inc. v. Humphries, a Cracker Barrel restaurant manager was fired for leaving the store safe open overnight. He sued for retaliation, alleging he was really being punished for having previously complained about racial discrimination against a fellow employee. The Supreme Court will decide whether the Civil Rights Act of 1866 allows such a retaliation claim. In another case, Gomez-Perez v. Potter, the issue is whether the Age Discrimination in Employment Act grants older workers a similar right to sue.

"Most Americans think discrimination laws simply stop irrational employers from making decisions based on race, age, or sex when those factors are irrelevant to performance," said Thomas Bowden, an analyst at the Ayn Rand Institute. "In fact, however, such laws burden all employers by jacking up the costs and risks of employing the so-called protected classes, such as minorities, women, and disabled or older workers.

"Any employer who disciplines, demotes, or fires a 'protected' worker must be prepared to prove, to the government's satisfaction, in a court of law, that the decision stemmed entirely from legitimate business reasons. Given the huge number of employment decisions made every day, the cost associated with maintaining evidence of those decisions' validity is staggering. A 'protected' employee can file a charge of discrimination with little or no evidence. Then the burden of proof--along with attorneys' fees, lost employee work time, and the risk of large monetary awards, including punitive damagesfalls on the employer. Predictably, employers end up giving preferential treatment to members of the 'protected' classes.

"Outlawing retaliation clothes the 'protected classes' in yet another layer of legal insulation. An employee whose bad performance puts him in danger of discipline or discharge need only make a complaint of discrimination as a 'pre-emptive strike.' Now if his employer fires him, he can cry 'retaliation' and drag his boss into court, without further evidence of wrongdoing.

"The ever-present threat of discrimination and retaliation suits prevents rational employers from acting on their own best thinking about who is most fit for a job. Whatever the Supreme Court's decisions in the two pending cases, Congress should address the continuing injustice of laws that encourage irrational discrimination in the name of preventing irrational discrimination. The best weapon against irrational discrimination is a free market, in which those who act on their stupid prejudices are shunned and lose out on talented minority, female, or older employees. The solution is not to make hiring such employees a nightmare."

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Thomas A. Bowden is an analyst at the Ayn Rand Institute, focusing on legal issues. A former lawyer and law school instructor who practiced for twenty years in Baltimore, Maryland, his Op-Eds have appeared in the Wall Street Journal, Philadelphia Inquirer, Miami Herald, Los Angeles Daily News, and many other newspapers. Mr. Bowden has given dozens of radio interviews and has appeared on the Fox News Channel's Hannity & Colmes.

To interview Mr. Bowden or book him for your show, please e-mail media@aynrandcenter.org

For more articles by Thomas Bowden, and his bio, click here.