CBOCS West v. Humphries (Retaliation Claim under sec. 1981)

This case, along with the Gomez-Perez case argued on February 19, explores the permissibility of retaliation claims made by employees under various federal civil right statutes. You recall that in Gomez-Perez the issue was whether the Age Discrimination in Employment Act allowed a federal employee to bring a retaliation claim (there is no question but that it is permitted for a private-sector employee) as a discriminatory act prohibited by the law. No mention is made of a retaliation claim in the section of the statute dealing specifically with federal employees.

In the CBOCS case, we deal with another federal statute, popularly known as "section 1981." (42 USC sec. 1981). This post-Civil War (1866) law, discussed below, prohibited dicrimination in the making of contracts. Though the law has often been interpreted (the most narrow interpretation of it was in the 1989 Patterson decision of the US Supreme Court), and expanded (the 1991 Civil Rights Act added protections for plaintiffs), it doesn't expressly have a retaliation provision in it. Thus, the question before the Court in this case will be whether Mr. Humphries, an African American terminated by his employer--Cracker Barrel--can bring a retaliation claim against them. He also brought a discrimination claim under Title VII, but that claim was dismissed for procedural deficiencies.

Well, let's understand a few facts of his case.

Relevant Facts in the Humphries Case

Humphries, an African-American, was an associate manager at Cracker Barrel's Bradley, IL restaurant. His performance from 1999-July 2001 was generally excellent. A new manager came on in July 2001 and, within a month, wrote up Humpries five times. Humphries alleged that the manager often made racially derogatory remarks. Humphries complained to the manager's supervisor but nothing was immediately done. Well, in Sept. 2001 the manager was replaced, but one of Humphries' fellow associate managers then decided to fire an African-American food server. Humphries complained to the new manager and the district manager that the firing of the food server was discriminatory. The district manager required Humphries to attend a meeting with his manager the next week.

The scheduled meeting never took place because on Dec. 5, 2001 (the day before the meeting), Humphries was fired. The employer alleged that the firing took place because an employee complained that Humphries had left the store safe unlocked in the evening--a charge that Humphrey disputed. No investigation into the incident was actually made by the company.

Humphries then brought claims of discrimination and retaliation under both Title VII and section 1981. The district court dismissed his Title VII claims and granted summary judgment to the employer on the 1981 claim. However, on appeal, the 7th Circuit, in a 2-1 panel vote, reinstated the 1981 claim and thus would allow the case to go forward. The sole claim of Humphries is that under sec. 1981 a claim for retaliation against an employee is a form of cognizable discrimination.

Getting to Section 1981

When it was originally passed and for 125 years after that (1866), 42 USC. section 1981 provided as follows:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

Under the 1969 Sullivan case (396 US 229), the US Supreme Court decided that the language of sec. 1981 was "broad and sweeping," and it held in that case that a white homeowner who had suffered retaliation for asserting the minority person's rights had standing to sue. Thus, even though the word "retaliation" wasn't in sec. 1981, the Court concluded that a retaliation claim was envisioned by the law. The general consensus in the circuits was that sec. 1981 broadly prohibited discrimination in all contractual facets of the employment relationship, including "postformation" adverse acts, such as retaliation.

However, this was cut back considerably in the 1989 Patterson decision of the Court (491 US 164). In Patterson the Court concluded that sec. 1981 protections applied to the right to make contracts and to enforce them. The Court held, however, that the right "extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment," 491 US at 176. Though the decision was silent as to the issue of retaliation, Congress thought it would be good to weigh in on the issue, and decided in 1991 to restore some of the rights seemingly taken away by the Court in 1989. It passed a second section of sec. 1981, which provided as follows:

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

In the legislative history of this Act the following line appears:

"[t]he list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” (emphasis added)).

Legislative history is never definitive; indeed, some Justices tend to want to ignore it. Yet, the intent of Congress seemed to be clear. Sec. 1981 would be restored to its full glory, so to speak, through the Civil Rights Act of 1991.

The 2005 Jackson Decision

Though the Jackson decision (544 US 167) dealt with whether a retaliation claim in a Title IX gender discrimination case was permitted when the statutory language didn't expressly provide for it (the Court, in a 5-4 decision, authored by Justice O'Connor, said that it was), its reasoning applied to the facts of this case, according to the 7th Circuit. The conclusion in the Jackson case was as follows:

"Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX," 544 US at 173-174.

Conclusion

Therefore, the Court needs to decide whether a retaliation claim exists in sec. 1981 when one isn't mentioned specifically in the text of the statute. We know that one is now permitted under Title VII and under the private employee provision of the ADEA. Will the Court now permit it under sec. 1981 (Humphries) and under the federal employee provision of the ADEA (Gomez-Perez)? It would be nice to think that we would have a consistent federal jurisprudence on this. But the "niceness" should arise not simply from a desire for tidiness, but from the realization that if retaliatory firing isn't discrimination, employers and others then would be able to hide behind another pretext for getting rid of racial minorities, if they were so inclined to do so.

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