More on Last Week’s Grant in No. 06-1431, CBOCS West Inc. v. Humphries

The following summary was written by Anna Molpus, a labor and employment associate at the Akin Gump office in Washington, DC.

In CBOCS West Inc. v. Humphries, the Supreme Court will consider whether an employee alleging employer retaliation for racial discrimination complaints may bring a claim under 42 U.S.C. § 1981 (“Section 1981”), as amended by the Civil Rights Act of 1991.

Enacted in the Civil Rights Act of 1866 in response to Reconstruction-era “Black Codes,” Section 1981 mandates equal rights of all persons, regardless of race, “to make and enforce contracts.” Courts have repeatedly recognized Section 1981’s applicability in the employment contract context, and Congress expanded its scope by passing the Civil Rights Act of 1991 to clarify that the phrase “make and enforce contracts” includes many aspects of the contractual relationship beyond just creation and enforcement. This clarification is widely considered to be a Congressional reaction to the Court’s decision in Patterson v. McLean Credit Union (1989), which had narrowly construed the scope of Section 1981 claims.

Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant, alleged that he was fired because he complained about his supervisor’s racially discriminatory behavior. Humphries’s claims under Title VII were dismissed for procedural deficiencies, but the Seventh Circuit held that Section 1981 authorizes suits where employers retaliate against employees complaining of racial discrimination, and that Humphries had established a prima facie case of such retaliation.

CBOCS West Inc., which owns Cracker Barrel restaurants, petitioned the Supreme Court to resolve the “continued vacillation and uncertainty” over whether Section 1981 in its amended form includes retaliation in its ban of racial discrimination in contractual relations. The petition asserted that at the time of the 1991 amendment, Congress was aware of the Court’s strict text-based interpretations of statutes exemplified by the Patterson decision, and would have included retaliation in the statutory text if it had intended for Section 1981 to ban such conduct. The petition argued that under a straightforward reading of the statutory text, employer conduct is not actionable under Section 1981 unless it is racially motivated, and noted that a retaliatory termination is based on an employee’s conduct (the allegation of racial discrimination), not on the employee’s race. The petition also asserted that the Seventh Circuit’s ruling undercuts the effectiveness of Title VII by providing a seemingly duplicative cause of action without the conciliation and mediation processes and statute of limitations periods imposed by Title VII.

In his opposition brief, Humphries asserted the correctness of the Seventh Circuit ruling under established Supreme Court precedent. The brief emphasized Sullivan v. Little Hunting Park, Inc., which interpreted Section 1981’s companion provision concerning property rights to include a retaliation cause of action, and Jackson v. Birmingham Board of Education, which held that retaliation is a form of discrimination prohibited by Title IX. The brief also noted language in the legislative history of the Civil Rights Act of 1991 indicating Congress intended to expand Section 1981’s scope to claims of “harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” The brief also disputed that the courts are inconsistently interpreting the amended statute, noting that all eight circuits to address the issue have held that Section 1981 prohibits retaliation.

The petitioner’s and respondent’s briefs are due Nov. 5 and Dec. 3, respectively.