Supreme Court Holds That Section 1981 Encompasses Retaliation Claims

By: Jennifer R. Russell

On May 27, 2008, in CBOCS West, Inc. v. Humphries, No. 06-1431, the U.S. Supreme Court, by a vote of 7-2, held that 42 U.S.C. § 1981 encompasses retaliation claims.

Mr. Humphries, an African-American, was employed as an assistant manager of a Cracker Barrel store and was fired after he complained to managers that a fellow assistant manager fired another African-American employee for race-based reasons. Mr. Humphries filed suit against CBOCS West, Inc., Cracker Barrel’s owner, alleging race discrimination under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and § 1981. Section 1981 provides that any “person within the jurisdiction of the United States” has the same right to “make and enforce” contracts, regardless of race.

The District Court for the Northern District of Illinois dismissed Humphries’ Title VII claim because he failed to timely pay required filing fees and granted CBOCS’ motion for summary judgment on the § 1981 claim. Humphries appealed. The U.S. Court of Appeals for the Seventh Circuit affirmed the ruling on the Title VII claim, but reversed the ruling and remanded for a trial on the § 1981 claim, rejecting CBOCS’ argument that the statute does not encompass a claim of retaliation. The Supreme Court granted certiorari to CBOCS and agreed to consider the question of whether the § 1981 encompasses retaliation claims.

The majority opinion, authored by Justice Breyer, held that employees may bring retaliation claims under § 1981. The Court based its decision upon stare decisis principles and examined its prior decision in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969), as later interpreted and relied upon by Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 176 (2005), which recognized that retaliation claims are encompassed by 42 U.S.C. § 1982, providing that “[a]ll citizens…shall have the same right…as is enjoyed by white citizens…to inherit, purchase, lease, sell, hold, and convey real and personal property.” The Court found that it has “long interpreted” §§ 1981 and 1982 alike since they were enacted together and have the same purpose of providing black citizens the same legal rights enjoyed by other citizens. The Court also noted that the Civil Rights Act of 1991 explicitly defines § 1981’s scope as including post-contract formation conduct. Lastly, the Court found support in the Courts of Appeals, which have uniformly held since 1991 that § 1981 encompasses retaliation actions.

The Court rejected CBOCS’ argument that the plain text of § 1981 does not refer to retaliation, since another statute held to encompass retaliation claims, Title IX of the Education Amendments of 1972, also does not include the word “retaliation.” Justices Thomas and Scalia dissented, however, arguing that statutory construction and the language of § 1981 do not support a claim for retaliation. Instead, the dissent concluded, since the statute is one prohibiting discrimination based on race and retaliation is not discrimination based on race, § 1981 does not provide an implied cause of action for retaliation.

The Supreme Court’s decision authorizes employees to sue under § 1981 when they believe they are subjected to retaliation after complaining about race discrimination in the workplace. It does not represent a change in the law, but constitutes a final determination confirming the rulings of the federal courts of appeals across the nation finding that Section 1981 encompasses retaliation claims. The result gives plaintiffs filing race retaliation claims more time to file such claims than the time limits imposed by Title VII and also eliminates the damage caps placed upon jury awards under the Civil Rights Act of 1991.

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