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The Second Circuit greatly expanded the right to bring retaliation suits against government employees last Thursday. In a unanimous three-judge ruling, the court found that claims of illegal retaliation based on a complaint of discrimination are allowed under 42 U.S.C. sec. 1983, which makes government employees liable for violating constitutional rights under the color of law.
The ruling represents a break from 19 years of precedent which largely found retaliation to be outside sec. 1983's scope.
The Retaliation in Question
The ruling came after a Long Island school teacher claimed he suffered illegal retaliation after reporting discrimination. Carlos Vega, the plaintiff, is a math teacher with 24 years of experience, 16 of them at Hampstead High School in Long Island. Vega, who is Puerto Rican and bilingual, alleges that he was subject to anti-Hispanic discrimination starting in 2006. For example, Vega alleges that he was assigned to teach classes of both English and non-English speaking students, requiring him to prepare classes in both Spanish and English -- twice the work for the same pay.
He was moved to a classroom adorned with a banner for the University of Puerto Rico and almost transferred from the school against his wishes. When he complained that these acts were discriminatory, the school gave him worse classes, his first negative performance review, and improperly deducted pay.
Vega sued, alleging discriminatory and retaliatory treatment under Title VII and sec. 1983. The district court tossed his 1983 claims on summary judgement, holding that they were barred by Second Circuit precedent. Retaliation for filing a discrimination complaint wasn't a constitutional violation 1983 could redress, the court reasoned.
On appeal, the Second Circuit split from past practice and found that retaliation claims were allowable under 1983. In doing so, the court found that retaliation for discrimination complaints counted as a "deprivation of any rights, privileges, or immunities" under the Equal Protection Clause of the Fourteenth Amendment.
The holding is a shift from the circuit's 1996 case, Bernheim v. Litt, relied on by the district court. In that case, the court wrote that "we know of no court that has recognized a claim under the equal protection clause for retaliation" and declined "to break new constitutional ground." Since then, Bernheim had become a strict bar to 1983 retaliation claims.
Here, the Second Circuit was not hesitant. As it noted, the court had ruled in 2010 that retaliation claims were permissible under 1983, when the retaliation was for participating in an investigation, not filing an complaint. Extending that logic, 1983 would also cover the initial complaint, the court ruled. Further, retaliation is discrimination forbidden by the Fourteenth Amendment, the court held. Retaliation for filing a claim of racial discrimination retaliates against a person because of his complaint of discrimination -- it is, essentially discrimination once again.
The ruling should be welcome news to any employment discrimination attorneys in the Second Circuit.
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