The Equal Justice Society, the Lawyers’ Committee for Civil Rights and four other non-profit organizations filed an amicus brief (download PDF) in the Supreme Court of the United States seeking review of the Seventh Circuit Court of Appeals’ decision in Kasten v. Saint-Gobain Performance Plastics Corporation.
In Kasten, the petitioner argued that oral complaints should be protected under the anti-retaliation provision of the Fair Labor Standards Act, which says that employees who “file a complaint” are protected from retaliation. The Seventh Circuit disagreed, narrowly construing “filing” to include only tangible written documents so that oral complaints are excluded from protection under the anti-retaliation provision. The decision is contrary to the Department of Labor’s interpretation, Congress’s intent in passing FLSA, and the interpretations of many other circuit courts.
In supporting petitioner’s position, the amicus brief focuses on the value of informal problem-solving and the reality that many employers, as in Kasten, not only encourage, but also often require, oral complaints prior to formal filings or litigation. The brief points out the “perverse incentives” of a remedial mechanism that does not protect oral complaints and in the process ends up giving employers incentives to retaliate prior to the filing of a written complaint, when an employee first voices his or her concern. Finally, the brief urges deference to the Equal Employment Opportunity Commission’s and the Department of Labor’s interpretations of the anti-retaliation provision, protecting oral complaints as well as written ones.
The anti-retaliation provision of FLSA was intended to help ensure that employers complied with workplace standards by encouraging individual employees to report grievances without fear of suffering economic consequences such as job loss. FLSA was enacted in part to protect vulnerable populations who might not be able to file a formal written complaint and at the same time would be most in need of the statute’s protections. Victims of discrimination in particular, including those who are illiterate or non-English speaking and unable to file written complaints, should not be afraid to complain orally when their rights are being infringed upon in the workplace.
The other signatories to the brief are the Asian American Justice Center, Asian Pacific American Legal Center, National Partnership for Women and Families, and the National Women’s Law Center. Pro bono assistance was provided by the law firm Fried, Frank, Harris, Shriver & Jacobson LLP.