The Supreme Court’s Anti-Retaliation Principle
79 Pages Posted: 21 Sep 2010 Last revised: 18 Jul 2011
Date Written: September 20, 2010
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.
Keywords: retaliation, Supreme Court, whistleblowers
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