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United States: Supreme Court Rules 1866 Civil Rights Provision Encompasses Retaliation Claims

(June 2, 2008) On May 27, the Supreme Court ruled that a provision of the Civil Rights Act of 1866 codified at 42 U.S.C. § 1981, which protects against racial discrimination in the making and enforcing of contracts, also prohibits retaliation against persons who complain of violations of this law.

Section 1981 provides in part that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” Hedrick G. Humphries, a former assistant manager at a Cracker Barrel restaurant, filed suit under section 1981 and other laws, claiming that CBOCS West, Inc., the owner of Cracker Barrel, dismissed him because of racial bias, as well as in retaliation for his complaining that another employee had been dismissed because of racial bias. The district court granted summary judgment to CBOCS on all claims. The U.S. Court of Appeals for the Seventh Circuit upheld the grant of summary judgment on Humphries's claim of direct discrimination, but reversed and remanded with respect to the retaliation claim, ruling that section 1981 encompasses retaliation claims. The Supreme Court granted the petition for certiorari of CBOCS to review this judgment with respect to retaliation.

The Court held that retaliation claims are permitted under section 1981. The Court observed that:

1. a 1969 Supreme Court case ruled that a related provision from the 1866 Civil Rights Act, codified at 42 U.S.C. § 1982, encompasses retaliation actions;

2. the Court has long interpreted sections 1981 and 1982 alike;

3. while a 1989 Supreme Court case narrowed section 1981 by excluding post-contract-formation conduct such as retaliation, Congress overturned that ruling in 1991; and

4. since 1991, the lower courts have uniformly interpreted section 1981 as encompassing retaliation actions.

Under these circumstances, the Court concluded that considerations of stare decisis – the principle that the Court will usually respect well-embedded precedent – strongly support the view that section 1981 encompasses retaliation claims.

The Court rejected various arguments by CBOCS resting on textual analysis, the legislative intent of the 1991 amendment, the fact that section 1981 claims overlap with claims under Title VII of the Civil Rights Act of 1964, and recent case law highlighting the distinction between status-based and conduct-based retaliation. (CBOCS West, Inc. v. Humphries, No. 06-1431 (May 27, 2008), available at