Justices consider §1981 retaliation claims

The Supreme Court recently heard oral argument in a case raising the issue of when, if ever, employees can bring discrimination-based retaliation claims under 42 U.S.C. §1981.
In CBOCS West v. Humphries, No. 06-1431, the Department of Justice urged the court to rule that private employees could bring retaliation claims under §1981.
In the case, Hedrick Humphries, an African-American assistant manager of a Cracker Barrel restaurant, claimed he was fired after complaining about racially charged comments made by his supervisor.
His retaliation claim under Title VII was dismissed as untimely, but he also sued under §1981. A U.S. District Court granted summary judgment for the employer.
But on appeal, the 7th Circuit held that §1981, as amended in 1991, covers employment retaliation claims.
The court’s decision in CBOCS could have serious ramifications.
First, the statute of limitations for §1981 claims is longer than for Title VII claims. Second, §1981 does not have a cap on damages, so plaintiffs could recover larger damage awards if retaliation claims were available. And finally, while Title VII applies specifically to employment cases, §1981 does not, so retaliation claims could be brought in contexts other than the employer-employee relationship.
Michael W. Hawkins, a partner in the Cincinnati office of Dinsmore & Shohl who represented the employer, argued that the plain language of the statute bars such a claim. This prompted Justice Stephen Breyer to note that the court has found other causes of action that were not specifically enumerated in federal statutes.
“We’ve implied that [in other cases],” Breyer said. “And therefore, if I can imply that, why can’t we imply a lawsuit on behalf of those who need the lawsuit to make the right effective?”
“I would simply say that you have to look to the text as to how you’re trying to apply it,” Hawkins said.
Justice Antonin Scalia seemed to offer Hawkins help with his argument.
“Mr. Hawkins, don’t we have a whole line of recent cases which say we have set our face against implying causes of action?” Scalia asked. “A whole bunch of recent cases saying we’re not going to do that any more?”
“Yes,” Hawkins said.
“So why don’t you invoke those?” Justice Scalia asked.
“We do invoke those in our brief,” replied Hawkins.
Arguing for the plaintiff, Chicago attorney Cynthia H. Hyndman said that denying employees the right to bring retaliation claims under the statute would allow employers to do an end-run around §1981 liability by firing an employee.
“Section 1981 doesn’t provide any specific remedies or any type of enforcement mechanism,” said Hyndman, a partner at Robinson Curley & Clayton. “It can only be enforced through a private lawsuit. [The employer is] basically asking this court to allow an employer to be able to fire an employee who brought a private lawsuit to enforce his §1981 rights.”
But Scalia said that issue is for lawmakers, not the court, to decide.
“That’s a good argument to Congress: ‘Congress should enact a retaliatory provision,’” he said. “But the statute says what it says, and what it says is that there has to be discrimination on the basis of race. And firing somebody for – in retaliation for making a complaint is not firing him on the basis of race. … I agree with you entirely that it would make sense to provide a cause of action for retaliation, but we don’t write statutes. We read them. And there’s nothing in this statute that says that.”
U.S. Solicitor General Paul Clement, arguing as amicus on behalf of the employee, said the court need not imply a new cause of action, but merely clarify the scope of a cause of action that already exists.
“This court has already inferred a private cause of action under §1981,” Clement said. “So the question before the court now is simply the scope of the basic guarantee in §1981, and particularly whether it prohibits retaliation against someone who exercised their undoubted right to complain about racial discrimination in a contractual process.”
The court has granted certiorari in Crawford v. Metropolitan Government of Nashville, No. 06-1595, where the justices will decide whether an employee who voluntarily provided information about alleged discrimination as part of an internal company investigation can sue for retaliation, even where she did not herself file a discrimination claim.