CBOCS West, Inc. v. Humphries

Congress passed Section 1981 of the Civil Rights of 1866 ("Section 1981") to help enforce the rights granted to freed former slaves by the Thirteenth Amendment. Section 1981 protects an individual's rights to equally make and enforce contracts, regardless of race; these protections include conduct that occurs after the formation of a contract. Section 1981 protects the employment relationship because it is considered contractual. However, it contains no language that addresses whether it protects employees from retaliation by their employers against the exercise of their Section 1981 rights.

Congressional Intent and the Plain Language of Section 1981

CBOCS West, Inc. ("Cracker Barrel") argues that the plain language of Section 1981 cannot be construed to create a cause of action for retaliation. It claims that if the Supreme Court ignores the statute's plain language and finds that it contains a cause of action for retaliation, it will be ignoring the law passed by Congress in favor of a law of its own creation. Similarly, it contends that if the Court considers the Section 1981's legislative history when making its decision, it would create a new law based on comments made in Congressional Committees, but not considered or adopted by Congress.

Cracker Barrel argues that while the plain language of the statute forbids race-based discrimination in the making and formation of contracts, this is fundamentally different from retaliation. It argues that for an action to violate Section 1981, it must be taken because of the individual's status, i.e., his race. Cracker Barrel contends that retaliation is not an action based on an individual's status, but instead is taken because of an individual's conduct, such as making complaints of race discrimination. Therefore, in its view retaliation claims are not encompassed within Section 1981.

Cracker Barrel bolsters its reading of the Section 1981 by arguing that if the Court finds that Section 1981 protects against retaliation, it will be ignoring Congressional intent. It first notes that when Congress amended the provision in 1991, it "specifically chose to exclude an anti-retaliation provision." In contrast, Cracker Barrel notes that Congress inserted anti-retaliation provisions into many other anti-discrimination laws. §Most notably, it inserted anti-retaliation provisions into the Americans with Disabilities Act one year before, and into the Family and Medical Leave Act three years after, it amended Section 1981 in 1991

Cracker Barrel further argues that Congress knew that the Court would interpret Section 1981 to exclude retaliation claims because it believed courts would interpret it strictly and according to its plain language. . Cracker Barrel notes that prior to the 1991 amendment of Section 1981, the Court had a well established pattern of looking at a statute's "specific language" and not "independently search[ing] out Congress's subjective intent where the statute did not require such an effort." It argues that Congress was aware of this "analytic framework" and therefore would have inserted a specific retaliation provision into Section 1981, had it wanted to provide such relief under that section.

In contrast, Humphries argues that Section 1981 forbids any conduct, such as retaliation, that impairs the rights it grants. He contends that his termination violated Section 1981 because it was a "direct obstruction" of a right it granted, and a "reprisal for exercising that right." First, Humphries argues that Cracker Barrel's Open Door Policy was a formal employer policy and therefore part of the employment contract. §Thus, when Cracker Barrel terminated his employment for making complaints through the Open Door Policy, it violated Section 1981 because it was retaliation for the exercise of a contractual right. Second, Humphries argues that even if Section 1981 does not contain a general prohibition against retaliation, it still forbids retaliation where it is simply another form of race-based discrimination. Humphries claims that he was fired because he was a black employee who complained, not just because he complained; therefore, the alleged retaliation is unlawful.

Humphries argues that a finding that Section 1981 protects against race-based retaliation is consistent with Congressional intent and prior Court interpretations of the Thirteenth Amendment and the Civil Rights Act of 1866. He points to the Court's holding in Bailey v. Alabama, which found that the Thirteenth Amendment protects workers from reprisals for exercising their rights under the Thirteenth Amendment. He argues this holding extends to Section 1981, which Congress passed, in part, to address reprisals against former slaves who attempted to exercise their Thirteenth Amendment rights.

Humphries also notes that a substantial number of courts have held that Section 1981 includes protection against retaliation. While he concedes that the Court's decision in Patterson v. McLean Credit Union limited Section 1981's protections to conduct at the time of contract formation, Humphries contends that this decision did not otherwise limit Section 1981's preexisting protection against retaliation. The Civil Rights Act of 1991 overruled Patterson's holding, but because Congress believed that Section 1981 already protected against retaliation, there was no need for it to add explicit anti-retaliation language when it re-extended Section 1981's protections to post-formation conduct.

Humphries points to the Court's prior interpretation of 42 U.S.C. § 1982 ("Section 1982"), a companion statute to Section 1981 also enacted in the Civil Rights Act of 1866, in Sullivan v. Hunting Park, Inc. In Sullivan, the Court found that Section 1982's prohibition against race discrimination included a prohibition against retaliation for advocating for the rights of those protected by Section 1982. Humphries argues that Section 1981 should be given the same construction as Section 1982, because both sections were "carved from section 1 of the 1866 Act, and share the same general purpose and historical origins." He further argues that Congress has never overturned or limited the Court's holding in Sullivan, and that therefore, the holding should control.

Title VII and Section 1981

Title VII of the Civil Rights Act of 1964 ("Title VII") provides an explicit cause of action for retaliation in the workplace context. Title VII also contains procedural and administrative requirements that a complainant must satisfy before he can file a lawsuit under it. Should the Court find that Section 1981 contains a cause of action for retaliation, it will overlap and possibly conflict with these provisions of Title VII.

Cracker Barrel argues that since Title VII expressly provides a cause of action for retaliation in the employment context, Section 1981 should not be read to include retaliation. Cracker Barrel argues that the procedures required by Title VII reflect Congress's judgment regarding the balance between addressing workplace discrimination and the prompt resolution of charges of discrimination. Cracker Barrel contends that if the Court upholds the Seventh Circuit's decision, it will create a cause of action for retaliation identical to the one provided by Title VII, but without Title VII's procedural and administrative safeguards. This, it says, would contravene Congressional intent.

Humphries contends that Congress intended Title VII to supplement existing employment discrimination laws, rather then to supplant those laws. He argues that it is consistent with Congressional intent for overlapping laws to provide different remedies and to allow the use of different procedures. He notes that in the Civil Rights Act of 1991, Congress codified the existence of dual remedies for employment discrimination under Title VII and Section 1981. In particular, Humphries points out that Congress's decided to amend Title VII to include a cap on damages, but put no damage cap on actions brought under Section 1981. He concludes that this indicates that Congress "did not wish to saddle successful section 1981 plaintiffs with Title VII's restrictions and limitations." He also notes that Congress has never made any one statute the exclusive remedy for employment discrimination, and that it has twice rejected attempts to make Title VII the exclusive remedy for such discrimination. .

Public Policy Considerations

Cracker Barrel and Humphries both assert that public policy supports ruling in their favor, and both rely on different consequences of the decision for support. Cracker Barrel argues that permitting individuals to assert a retaliation claim under Section 1981 will dilute the role of the Equal Employment Opportunity Commission ("EEOC") and increase the burden on plaintiffs, employers, and the courts, by encouraging plaintiff's to bypass the EEOC's informal resolution procedures. Cracker Barrel contends that if plaintiffs can bring a retaliation claim under Section 1981, it will create a super-protected class of plaintiffs, those alleging race or color discrimination, who can bypass the EEOC and its informal complaint resolution procedures. It argues that Congress passed Title VII and Civil Rights litigation to remove impediments to certain groups, and that creating a super-protected class is contrary to this purpose.

Humphries argues that if Section 1981's protections do not cover such complaints, then employers will be able to retaliate against employees for any exercise of their Section 1981 rights. He argues that employers not covered by Title VII and its prohibitions against retaliation will create mandatory complaint procedures for employees, and then be free to use those procedures to retaliate against complaining employees. Similarly, he contends that if Section 1981 does not cover retaliation, it will leave that same class of employees without any recourse against employer retaliation. Humphries concludes that if Section 1981 does not cover retaliation it will allow employers to prevent enforcement of the law. Without protection, employers will be to suppress Section 1981 complaints by legally firing or threatening to fire a worker who brings suit under it.