CBOCS West v. Humphries II--Discrimination under sec. 1981

Once the Court decided the Gomez-Perez case the way it did (also handed down on May 27), it had little choice but to find a protection against retaliation for an employee who brought a suit under "Section 1981"--the Civil Rights Era statute. I tell about Section 1981 and some of its interpretation in my summary of the facts of the case. The only difference between Gomez-Perez and this case was that an 1866 statute, rather than a 1967 law, was at issue here. This extra century of existence of the older law, as well as the fact that it dealt explicitly with racial discrimination (the issue in the case), broke off Chief Justice Roberts from the minority in Gomez-Perez and led to his siding with the majority here. Thus, the Court held, by a 7-2 margin (opinion by Breyer; dissent by Scalia and Thomas), that sec. 1981, which prohibited discrimination against minorities in the making of contracts, also prohibited retaliation against minorities by termination, demotion or other forms of workplace harassment.

Summary of Important Facts and Argument

Here are a few of the facts and procedural issues from below:

"Claiming that petitioner CBOCS West, Inc., dismissed him because he is black and because he complained to managers that a black co-employee was also dismissed for race-based reasons, respondent Humphries filed suit charging that CBOCS' actions violated both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, the latter of which gives “[a]ll persons ... the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” The District Court dismissed the Title VII claims for failure to timely pay filing fees and granted CBOCS summary judgment on the § 1981 claims. The Seventh Circuit affirmed on the direct discrimination claim, but remanded for a trial on Humphries' § 1981 retaliation claim, rejecting CBOCS' argument that § 1981 did not encompass such a claim."

As mentioned, the Supreme Court affirmed the Seventh Circuit on the Section 1981 claim. Here is how it argued:

"(a) Because this conclusion [i.e., to affirm the Seventh Circuit] rests in significant part upon stare decisis principles, the Court examines the pertinent interpretive history. (1) In 1969, Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386, as later interpreted and relied on by Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 176, 125 S.Ct. 1497, 161 L.Ed.2d 361, recognized that retaliation actions are encompassed by 42 U.S.C. § 1982, which provides 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.” (2) This Court has long interpreted §§ 1981 and 1982 alike because they were enacted together, have common language, and serve the same purpose of providing black citizens the same legal rights as enjoyed by other citizens. See, e.g., Runyon v. McCrary, 427 U.S. 160, 183, 197, 190, 96 S.Ct. 2586, 49 L.Ed.2d 415.(3) In 1989, Patterson v. McLean Credit Union, 491 U.S. 164, 177, 109 S.Ct. 2363, 105 L.Ed.2d 132, without mention of retaliation, narrowed § 1981 by excluding from its scope conduct occurring after formation of the employment contract, where retaliation would most likely be found. Subsequently, Congress enacted the Civil Rights Act of 1991, which was designed to supersede Patterson, see Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383, 124 S.Ct. 1836, 158 L.Ed.2d 645, by explicitly defining § 1981's scope to include post-contract-formation conduct, § 1981(b). (4) Since 1991, the Federal Courts of Appeals have uniformly interpreted § 1981 as encompassing retaliation actions. Sullivan, as interpreted by Jackson, as well as a long line of related cases where the Court construes §§ 1981 and 1982 similarly, lead to the conclusion that the view that § 1981 encompasses retaliation claims is well embedded in the law. Stare decisis considerations strongly support the Court's adherence to that view. Such considerations impose a considerable burden on those who would seek a different interpretation that would necessarily unsettle many Court precedents."

Disposing of Cracker Barrel (CBOCS) Arguments

Here is what the Court had to say about appellant's arguments.

"(b) CBOCS' several arguments, taken separately or together, cannot justify a departure from this well-embedded interpretation of § 1981. First, while CBOCS is correct that § 1981's plain text does not expressly refer to retaliation, that alone is not sufficient to carry the day, given this Court's long recognition that § 1982 provides protection against retaliation; Jackson 's recent holding that Title IX of the Education Amendments of 1972 includes an antiretaliation remedy, despite Title IX's failure to use the word “retaliation,” 544 U.S., at 173-174, 176; and Sullivan 's refusal to embrace a similar argument, see 396 U.S., at 241. Second, contrary to CBOCS' assertion, Congress' failure to include an explicit antiretaliation provision in its 1991 amendment of § 1981 does not demonstrate an intention not to cover retaliation, but is more plausibly explained by the fact that, given Sullivan and the new statutory language nullifying Patterson, there was no need to include explicit retaliation language. Third, the argument that applying § 1981 to employment-related retaliation actions would create an overlap with Title VII, allegedly allowing a retaliation plaintiff to circumvent Title VII's detailed administrative and procedural mechanisms and thereby undermine their effectiveness, proves too much. Precisely the same kind of Title VII/ § 1981 “overlap” and potential circumvention exists in respect to employment-related direct discrimination, yet Congress explicitly and intentionally created that overlap, Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147. Fourth, contrary to its arguments, CBOCS cannot find support in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345, and Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069. While Burlington distinguished discrimination based on status ( e.g., as women or black persons) from discrimination based on conduct ( e.g., whistle-blowing that leads to retaliation), it did not suggest that Congress must separate the two in all events. Moreover, while Domino's Pizza and other more recent cases may place greater emphasis on statutory language than did Sullivan, any arguable change in interpretive approach would not justify reexamination of well-established prior law under stare decisis principles. "

Conclusion

There you have it--an expansion of rights for plaintiffs claiming discrimination in violation of the civil rights laws in the employment context. Who would have thunk it from this Court?

3542