Skip to Main Content

Keeping you informed

U.S. Supreme Court Says Section 1981 Includes Retaliation Claims

    Client Alerts
  • May 30, 2008

Section 1981 is a Reconstruction-era law that guarantees individuals the equal right to “make and enforce contracts, regardless of their skin color.”  This law protects individuals from discriminatory treatment based on race, including discrimination in employment.  Plaintiffs often invoke Section 1981 in race discrimination suits when they miss filing deadlines with the Equal Employment Opportunity Commission under Title VII.

On Tuesday, in CBOCS West, Inc. v. Humphries, the United States Supreme Court held that Section 1981 also authorizes employees to sue when they are subjected to retaliation after complaining about race discrimination.  This case involved an African-American employee who worked at a Cracker Barrel restaurant.  Humphries claimed that he was fired after complaining about racially derogatory remarks made by his supervisor and about discrimination against an African-American co-worker.  The company claimed Humphries was fired because he left the restaurant safe open.  The Seventh Circuit Court of Appeals held that Humphries could pursue his retaliation claim under Section 1981.

The Supreme Court upheld the Seventh Circuit’s decision in a 7-2 ruling.  In the majority opinion, the Court noted that even though the plain language of Section 1981 does not reference retaliation, the idea that the act “encompasses retaliation claims is indeed well-embedded in the law.”  The Court referenced case law allowing retaliation claims under Section 1982, a statute establishing equal rights concerning real and personal property, and noted that this comparison is appropriate because the two statutes have common language, origins, and purposes.  Additionally, the Court relied upon decisions prior to the enactment of Title VII, which allowed retaliation claims under Section 1981.

Given the dramatic increase in retaliation claims over the past few years, this decision is significant because it will provide plaintiffs with substantially more time to file Section 1981 retaliation suits (up to four years) than is permitted to file retaliation claims under Title VII.  Additionally, claims filed under Section 1981 are not subject to a cap on damages and could potentially subject employers to large jury verdicts.  This case continues a recent string of Supreme Court decisions that have broadened employee rights to sue for retaliation.  The Court is clearly warning employers against taking adverse action against complaining employees unless they can clearly demonstrate legitimate business reasons for the actions.