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Employer retaliation cases reach U.S. Supreme Court

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The decision was written by Justice Sandra Day O'Connor. She has since retired, and it is unclear how newer members of the court, Chief Justice John Roberts and Justice Samuel Alito will view the issue.

Legal analysts say they are watching these cases to see how broadly or narrowly the high court reads the statutes.

Will the majority justices insist that unless Congress has included the specific word "retaliation" in the statute, the law does not provide a cause of action against retaliation? Or will the Supreme Court embrace a more prophylactic approach against discrimination and let employees use the force of law to counter workplace retaliation even when it is not spelled out in the statute?

The court has also agreed to decide a third retaliation case, which has not yet been set for oral argument. It involves a woman who was fired after she was asked to provide evidence against a co-worker accused of sexual harassment. Her retaliation lawsuit was thrown out because she had never filed an underlying sexual harassment suit.

The high court's granting of three similar cases in such a short period of time is unusual, legal experts say, and suggests that the issue of retaliation is of some importance to the justices. What remains unclear, they say, is whether the court will decide these cases in ways that expand civil rights protections or narrow them.

"The court has taken a number of retaliation cases over the past several years and has been generous in providing protection for employees," Georgetown Law Center Professor Michael Gottesman said in a recent press briefing.

Some analysts suggest that the change in personnel at the high court may have eroded support for O'Connor's expansive reading of Title IX. Some are optimistic that the high court will uphold the former justice's pragmatic approach to civil rights laws.

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