Argument Preview

CBOCS West Inc. v. Humphries takes the Court on an excursion back to the Civil War era, to Congress' first major civil rights law "“ the Civil Rights Act of 1866. The case raises an issue that remains unresolved in the Act's nearly century and a half of history: does the Act's first section, now codified as 42 U.S.C. 1981, guaranteeing equality in the right to make a contract, forbid reprisals against an individual who complains of discrimination against others. In short, the case asks whether retaliation is itself a form of forbidden discrimination when contracting rights are at stake. It is an issue that arises most often in workplace cases, but the Act seeks to assure equality in any form of contract so the retaliation issue potentially reaches much more widely.


As American bound up its wounds from the Civil War and was just recovering from the shock of President Abraham Lincoln's assassination, the 39th Congress went to work to fashion an uneasy peace "“ "the Reconstruction" of a united America, a part of which was to assure the freed slaves a chance to enter civil society as full participants. The Civil Rights Act of 1866 sought to assure full equality to all races, in the ordinary pursuits of life "“ to work, to file lawsuits, to enter into legal relationships including contracting, to rent, buy or sell property, to inherit property from forebears, and, generally, to be treated alike under the law. In 1870, most of the promises of equality were split off into what would become Section 1981, and the guarantees of equality in renting, acquiring or inheriting property would become Section 1982. The CBOCS case involves only Section 1981, and, in particular, the protection of an equal right "to make and enforce contracts."

Congress found its authority to pass the 1866 Act in the newly ratified Thirteenth Amendment, ending slavery. Stubborn, often violent resistance to the entry of freed blacks into the American mainstream mounted after that Amendment was put into the Constitution. And the Civil Rights Act was Congress direct response, to the so-called "black codes" and other acts of harsh discrimination against blacks. The Act swept so broadly in its assurances of equality that it came to be understood as a blueprint for the Fourteenth Amendment in 1868. (It was after the Fourteenth Amendment was placed into the Constitution that, relying upon it, a later Congress reenacted the 1866 Act. The use of Fourteenth Amendment powers in the reenactment gave rise to an impression "“ one that lasted until 1976 "“ that Sections 1981 and 1982 may only apply to actions of state government, not to those of private individuals or groups, since the Fourteenth Amendment's equality guarantee only applies to state action. There has been no doubt, since the 1976 Supreme Court ruling in Runyon v. McCrary, that these sweeping civil rights laws apply to private actions, too.

Section 1981's guarantee of equality in making and enforcing contracts is a popular basis for lawsuits involving racial or ethnic discrimination in the workplace. Lawyers who specialize in employment law "“ both those who represent workers and those who represent employers "“ agree that 1981 is a ready tool for attacking on-the-job discrimination. There is no doubt that it protects a worker who is discriminated against in his or her own job situation because of his or her race or ethnic background. But, increasingly, Section 1981 workplace cases are focusing on claims of "retaliation" "“ that is, reprisals allegedly carried out by employers because workers have complained about biased treatment of other workers or biased conduct toward workers in general. Before the early 1950s, a claim for retaliation in the workplace was unheard of. The first mention of the concept in a Supreme Court decision came in 1972. That has changed markedly, so that now, nearly half of all Section 1981 claims are said to involve a retaliation claim. For years, most retaliation claims filed with the U,S. Equal Employment Opportunity Commission have come under an explicit retaliation clause in Title VII of the 1964 civil rights law, prohibiting race, sex and other forms of discrimination on the job Section 1981 claims do not go to the EEOC.

The two laws are quite different. Under Title VII, a worker must first take a complaint to EEOC, that agency is to engage in efforts to work out the situation, there are tight limits on filing such claims at EEOC and later in court, and there are limits on damages that a worker can win. Section 1981 is free of most of those restrictions: the worker goes directly to federal court to seek relief.

The worker involved in the CBOCS case, Hedrick G. Humphries, a black man who was fired from his job, allegedly as a retaliatory gesture, actually began his case under both Title VII and Section 1981. But his Title VII claims were dismissed for procedural defects, and his case then proceeded solely as a Section 1981 claim. A District Court ruled that Section 1981 does not cover retaliation claims. The Seventh Circuit Court, however, disagreed, sending the case back for a trial on whether Humphries was fired because "“ as he claims "“ he had complained about the firing of a black employee who was a food server.. He also had complained earlier about a supervisor's remarks to white workers that he was there to take care of their interests.

The company that operates Cracker Barrel restaurants, CBOCS West Inc., then appealed to the Supreme Court.

Petition for Certiorari

In its appeal filed on April 25 of last year, the restaurant chain raised a single question: "Is a race retaliation claim cognizable under 42 USC Sec. 1981?" The company, noting that Section 1981 does not include the word "retaliation," argued that there is a basic difference in the concept of a firing based on retaliation and one based on discrimination. A retaliatory discharge, it said, is motivated by the worker's complaint, not by his or her race. If the worker had not complained, it added, there would have been no firing "“ whether the worker is white or black. By contrast, a discriminatory firing is based explicitly on that worker's race; if it were not for the worker's race, there would have been no discharge. The petition also argued that the lower courts have "struggled mightily" over the scope of Section 1981, and that the Supreme Court has not helped matters by rulings in 1969, 1989 and 2005.

Humphries opted initially not to respond to the petition, but the Court on May 17 asked for a response. Humphries then contended that the Court essentially settled the matter in two decisions "“ one in 1969 in Sullivan v. Little Hunting Park, allowing a retaliation claim under the 1866 Act's guarantee of equality in property transactions (under Section 1982, the original companion to 1981), and in 2005, in Jackson v. Birmingham Board of Education, allowing a retaliation claim for complaining of sex bias under Title IX of the 1972 civil rights law. His response also argued that Congress, in passing the Civil Rights Act of 1991, left no doubt that Section 1981 was to be read broadly to include all aspects of a contractual relationship "“ including, he said, protection against retaliation.

The Court granted review on Sept. 25 in the opening grants for the new Term. The case is now scheduled for oral argument on Wednesday, Feb. 20. It is the only case scheduled for argument that day. Michael W. Hawkins of Cincinnati will argue for CBOCS, and Cynthia M. Hyndman of Chicago will argue for Humphries. Hyndman will divide her time with U.S. Solicitor General Paul D. Clement, since the federal government is supporting Humphries' right to bring a retaliation claim.

Merits Briefs

The restaurant chain puts heavy emphasis in its merits brief on the argument that what is at stake is the need for the judiciary to respect the text of laws that Congress passes, not to undertake to "legislate" on their own. The case, it contends, is not about taking a remedy away from Humphries, or anyone else who is retaliated against for complaining about racial bias in the workplace. That remedy is clearly available under Title VII. Because, in 144 years, Congress has not once put a retaliation right into Section 1981, while doing so explicitly in other federal civil rights laws, CBOCS asserts that no such right exists in 1981. This case, it thus says, ":is about respect for and proper construction of the laws Congress, as the elected representatives of the people, enacts.The Seventh Circuit has, in effect, drafted, parsed, and executed legislation without concern for the democratic norms embodied in the Constitution, particularly the separation of powers."

Its brief also argues, for policy reasons, that Section 1981 lawsuits "will end up clogging the judicial system" if retaliation claims are allowed, undercutting the mechanisms that Congress expressly created under Title VII to deal with such claims. It also suggests that the Circuit Court misread the Supreme Court's prior opinions, and misinterpreted the legislative history of both the 1866 Act itself and Congress' civil rights enactments in 1991.

The written argument for Humphries suggests that Section 1981 is, indeed, different from Title VII, but in the sense that 1981 uses operative language describing the rights it protects, but does not enumerate what conduct violates those rights "“ as does Title VII. Congress, the brief goes on, intended to have overlapping remedies in the two laws.

As a general policy matter, the Humphries brief says, "the existence of a right provides the right-holder protection not only from direct obstruction of the right, but also from reprisals for exercising that right." The brief interprets the original enactment of the 1866 Act as intended to deal with "widespread retaliation against freed slaves who attempted to assert their new rights" under the Thirteenth Amendment. Thus, the brief concludes, "Section 1981's protections against reprisal for exercising statutory rights are firmly rooted."

Backing CBOCs' position, the U.S. Chamber of Commerce echoes the restaurant chain's arguments that anti-retaliation concepts developed only long after Section 1981 was enacted, and that the law not only does not expressly mention retaliation, but actually is focused solely on protection of a worker's race, not his or her conduct. A combined brief from the Equal Employment Advisory Council and the National Federal of Independent Business Legal Foundation, notes that virtually every other federal non-discrimination law "“ those protecting against bias based on race, gender, religion, age, disability, and family status "“ include specific language protecting against firing or other discrimination against someone who has opposed some conduct made unlawful by those statutes.

Supporting Humphries, the federal government relies on a variety of arguments, the most novel of which is that this case actually is about stare decisis "“ the need to respect two precedents that did not deal directly with Section 1981 (Sullivan, involving Section 1982, and Jackson, involving Title IX). "Considerations of stare decisis have their greatest force in the areas of statutory interpretation, and petitioner has supplied no basis for the Court to deviate from the statutory holdings of Sullivan and Jackson in the analogous setting here," the brief asserts.

In an argument based on statutory construction, the Solicitor General says there was no need for a specific mention of retaliation in Section 1981. Other civil rights laws, more detailed in form, set up causes of action, the brief says, but Section 1981 belongs in a narrow group of statutes on anti-discrimination that "are so abbreviated that any cause of action, for any kind of prohibited activity, must be inferred."

The government brief also relies upon the 1991 civil rights law as resolving any doubts about the issue. And, for policy reasons, the brief says, "absent protection against retaliation, the underlying discrimination prohibited by such statutes could go unremedied." The brief also argues that Section 1981 is a necessary source of remedy for retaliation claims, because many employers are exempted from Title VIII and, moreover, Section 1981 covers all contracts, not just those involving employment relationships.

Four-dozen historians and other scholars join Humphries' side of the case, seeking to put the 1866 law in the broader context of what was happening during the time of the 39th Congress. Reprisals and fear of reprisals, that brief says, played an "integral role" in seeking to withhold from the freed slaves their right to enter into and enforce contracts.

Fourteen states also join in arguing the importance of Section 1981 in attacking retaliation. The National Employment Lawyers Association argues how frequently retaliation claims are now being advanced in 1981 cases. That group also contends that the Court would have to overrule both Sullivan and Jackson in order to hold that retaliation is beyond the reach of Section 1981.

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