Can an employee alleging employer retaliation for racial discrimination complaints bring a claim under 42 U.S.C. § 1981 ("Section 1981"), as amended by the Civil Rights Act of 1991?
42 U.S.C. § 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 their skin color. Section 1981 protects parties from discriminatory treatment both at the time when contracts are formed, and in post-formation conduct. Section 1981 applies to many aspects of the employment relationship because that relationship is considered contractual; however, the extent of this protection is unclear. This case addresses the question of whether an employee can bring a claim for retaliation under Section 1981. Retaliation does not clearly come under the scope of Section 1981 because often it is based not on an employee's characteristic, such as race, but instead on an action taken by the employee, such as complaining about work conditions or discriminatory treatment. However, retaliation claims often overlap with, and are difficult to separate from, claims of discrimination. Should the Supreme Court decide that Section 1981 protects an employee from race-based retaliation, it will give employees greater flexibility in filing claims of retaliation, because they will not be subject to the filing deadlines and limits on damages found in Title VII of the Civil Rights Act of 1964, an alternate provision which does encompass retaliation claims.
Questions as Framed for the Court by the Parties
Is a race retaliation claim cognizable under 42 U.S.C. § 1981?
Herndrick Humphries, an African American, worked as an associate manager in a Cracker Barrel restaurant owned by CBOCS West, Inc. ("Cracker Barrel") for three years, until Cracker Barrel terminated his employment on December 5, 2001 for violation of company policy. In August and October 2001, Humphries complained to his district manager about his general manager's disciplinary reports, racially offensive remarks, and the termination of fellow employee, Venis Green. Humphries believes his general manger’s disciplinary reports and the termination of Green were racially motivated and groundless. The district manager failed to take any action, and instead fired Humphries shortly thereafter due to a report from another associate manager that Humphries left the store safe open overnight.
On August 9, 2002, Humphries filed a charge of discrimination with the Equal Employment Opportunities Commission ("EEOC") challenging the termination of his employment. The EEOC conducted an investigation and issued Humphries a right-to-sue letter dated March 3, 2003. Humphries filed a complaint against Cracker Barrel in the United States District Court for the Northern District of Illinois, alleging race discrimination and retaliation under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
The district court for the Northern District of Illinois dismissed the Title VII claim for incurable procedural defects, leaving the Section 1981 claim as Humphries's sole avenue of relief. Section 1981 is the only statutory provision Humphries relied upon in his appeal to the Seventh Circuit and therefore the only one at issue before the Supreme Court. Section 1981 attempts to curtail discrimination in contractual settings by providing for equal enjoyment and protection of contractual rights regardless of race.
On appeal, Cracker Barrel relied upon the Seventh Circuit's opinion in Hart v. Transit Management of Racine, Inc., 426 F.3d 863 (7th Cir. 2005), arguing that Section 1981 does not protect against retaliation. Humphries maintains that his claim is race based and actionable under Section 1981. Conversely, Cracker Barrel argues retaliation is not a race-based claim and therefore cannot fall under that provision. The Seventh Circuit determined Humphries did have a cause of action under Section 1981 and overruled Hart, determining that Section 1981 provides broad protection against retaliation. Additionally, the court determined Humphries had sufficient evidence to support his retaliation claim and remanded the case for trial. Cracker Barrel petitioned for certiorari before the Supreme Court, which was granted on September 25, 2007, despite opposition by 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.
In 1865, following the Civil War, Congress enacted the Thirteenth Amendment, which provided that "Neither slavery nor involuntary servitude. shall exist within the United States, or any place subject to their jurisdiction Following the enactment of the Thirteenth Amendment, a number of states attempted to avoid its requirement by passing "Black Codes" which placed significant legal limitations on the newly-freed former slaves. In 1866, partially in response to these laws, Congress passed the Civil Rights Act of 1866.
Section 1981 of the Civil Rights Act of 1866 ("Section 1981"), the section at issue in this case, is aimed as protecting individuals from private acts of discrimination. It provides that all persons within the United States "shall have the same right in every State and Territory to make and enforce contracts.as is enjoyed by white citizens.." Section 1981 covers conduct at and after the time of contract formation. The relationship between an employer and employee is considered a contract within the purview of Section 1981. However, it is still unclear whether or not it protects employees against race-based retaliation by their employers. This case will help clarify that question.
In 1964, Congress passed Title VII which created the Equal Employment Opportunity Commission ("EEOC"). Title VII also contains a broad prohibition against workplace discrimination, including race discrimination and prohibits employer retaliation against employees for exercising the rights Title VII grants them. It also contains extensive procedural requirements that a complainant must satisfy before filing a lawsuit under it, including a requirement that a complainant must first file a charge of discrimination with the EEOC before filing a lawsuit, and a time limit for such filings. However, Title VII only covers employers with 15 or more employees for at least 20 weeks of the year.
In their brief in support of Humphries, the National Employment Lawyer's Association ("NELA") points to this gap in Title VII's coverage, and notes that it leaves Section 1981 as the only remedy for certain retaliation claims. In their amicus brief, various States argue that such a gap will have a chilling effect on complaints of discrimination in general because employers will be able to continue retaliating with impunity. NELA also notes that lawsuits brought under Section 1981 are not subject to damage caps, whereas Title VII does contain damage caps that limit a plaintiff's recovery.
In their brief in support of Cracker Barrel, the Equal Employment Advisory Council ("EEAC") and the National Federation of Independent Business Legal Foundation argue that allowing retaliation claims under Section 1981 would undermine Title VII's procedural requirements and "deprive employers of the benefit of timely notice and expeditious resolution of retaliation claims." The United States Chamber of Commerce ("USCC") argues that the expeditious raising of claims is essential to a fair process because evidence and witnesses become unreliable over time and make it difficult to assess past events. Finally, the EEAC argues that allowing retaliation claims under Section 1981 will deprive employers of "prompt notice" of discrimination and retaliation claims, and will therefore hamper their attempts to address discriminatory workplace practices.
This case will shed light on an individual's ability to bring retaliation claims in the work place. If the Court allows Section 1981 retaliation claims, plaintiffs will have more time to file these claims than is permitted under Title VII and without facing Title VII's damage caps. If the Court determines that Section 1981 does not cover retaliation, plaintiffs will only be able to bring retaliation claims under Title VII, which will leave some individuals with no protection from workplace retaliation. Further, the decision in this case could mark a change in the way courts interpret statutes. If the Supreme Court determines that Section 1981 includes a cause of action for retaliation, it may allow courts to interpret statutory texts to include protections not specifically enumerated.
The Supreme Court's decision in this case will finally answer the question of whether claims of race-based retaliation can be brought under Section 1981. If the Court finds that such claims can be brought, it will give plaintiffs more time to file such claims then the time limits imposed in Title VII, and free them from the damage caps Title VII places on jury awards. If the Court determines that they cannot be brought, it will limit plaintiffs to bringing claims of race-based retaliation under Title VII, subject to the administrative limitation in that statute. The Court's decision to take this case, despite the lack of lower court conflict, may indicate that it will use the case to remove the a cause of action for retaliation from Section 1981, and possibly to emphasize that when engaging in statutory interpretation, lowers courts should hew closely to the statute's plain language.
- Wex: Law about Employment Discrimination
- Wex: Law about Civil Rights
- Brief for Members of Congress as Amici Curiae in Support of Respondent
- Brief for the Leadership Conference on Civil Rights and the Leadership Conference Education Fund Supporting Respondent
- Brief of Historians Mary Frances Berry et al. supporting Respondent