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Supreme Court allows retaliation suits under Civil War-Era law

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in Discrimination and Harassment,Employment Law,Human Resources

On May 27, 2008, the U.S. Supreme Court further expanded the ability of employees to sue for retaliation—an area of employment law that has exploded in recent years.

Specifically, the court held that a federal statute enacted shortly after the Civil War, granting all citizens the right to enter into and enforce contracts (commonly referred to as Section 1981), can be used to bring a claim of employment-related retaliation. (CBOCS West, Inc. v. Humphries, No. 06-1431, U.S. Supreme Court, 2008)

Discrimination no, retaliation yes

Hedrick Humphries, who is black, was the assistant manager at a Cracker Barrel in Illinois. He alleged he was fired based on his race and because he complained to managers that a black co-worker had also been dismissed for race-based reasons.

Humphries sued Cracker Barrel under Section 1981 for both race discrimination and retaliation. The trial judge granted summary judgment to Cracker Barrel on both of his claims, dismissing the case.

Humphries appealed. The 7th Circuit Court of Appeals upheld the trial judge’s decision on race discrimination but disagreed on retaliation. The appellate court held that Humphries should be allowed to proceed with his claim that he was unlawfully retaliated against in violation of Section 1981 for complaining about the alleged discriminatory treatment of his co-worker.

Cracker Barrel turned to the U.S. Supreme Court, arguing that Section 1981 prohibits only discrimination—not retaliation because it isn’t specifically mentioned in the law.

The Supreme Court rules

In a 7-2 ruling, the U.S. Supreme Court agreed with the 7th Circuit, thereby allowing retaliation claims to be brought under Section 1981.

In reaching its conclusion, the Supreme Court relied upon four points:

  1. Section 1982, another Civil War-era law that protects rights in the purchase of real property, had previously been found by the court to prohibit retaliation.
  2. Section 1981 and Section 1982 have consistently been interpreted alike.
  3. Congress passed legislation in 1991 reversing an earlier Supreme Court decision and specifically declaring that post-contract formation conduct should be prohibited under Section 1981.
  4. Since the law was revised in 1991, lower courts have consistently found that Section 1981 prohibits retaliation.

A strongly worded dissent written by Justice Clarence Thomas, joined by Justice Antonin Scalia, concluded that the statute does not state that it prohibits retaliation, and when Congress revised the law, it didn’t include a provision barring it.

According to Thomas: “Retaliation is not discrimination based on race. When an individual is subject to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct.” Therefore, the dissent found the court should not imply a claim for retaliation into a statute that exclusively prohibits discrimination.

What it means

This ruling is not surprising, given prior decisions, but it is highly significant.

The Supreme Court’s decision means there will be more race discrimination and race-based retaliation cases—and that more of these will be brought under Section 1981, rather than Title VII.

Section 1981 provides several benefits to plaintiffs, including:

  • A significantly longer statute of limitations
  • No administrative remedies to satisfy
  • No caps on damages as under Title VII

As a practical matter, the ruling reinforces that employers should maintain records for at least four years to cover the statute of limitations period for Section 1981 claims.

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