Today the Supreme Court will hear arguments on one of the major discrimination cases this year, CBOCS West v. Humphries. The case concerns Hedrick Humphries, an African-American assistant manager at a Cracker Barrel restaurant. Humphries says he was fired when he complained about racially discriminatory behavior by a white supervisor.

Unlike in the Ledbetter v. Goodyear discrimination case of last year, in which Goodyear Tire basically admitted that sex discrimination in pay and promotions may have taken place, but said it was beyond the two year time limit for awarding back pay, in this case Cracker Barrel is defending its decision to fire Humphries. The company argues that the very definition of retaliatory termination is based on the employee's behavior and therefore couldn't possibly be based on racial discrimination. The problem, of course, is that Humphries was fired because he complained about racial discrimination. As Emily Bazelon points out in Slate, there wouldn't be much of a point in having Title VII, the umbrella anti-discrimination legislation, if there isn't protection for the employee against retaliation if they make a complaint.

What is similar in both the Ledbetter and the Humphries cases is that employers are relying on technicalities of the law to avoid the real issue of discrimination. This seems to be the way of fighting discrimination charges these days; employers can no longer justify discrimination itself, but they protect themselves by pointing to the limitations of current law. If Cracker Barrel's parent company can successfully argue that retaliation is not the same as discrimination, this could have major implications: Employers could be protected against discrimination lawsuits by simply firing the pesky employee who complains. If the Court votes in the vein of Ledbetter, the rights of employees to fight discrimination will suffer one more blow.

--Kay Steiger

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