United States Supreme Court Holds That 42 U.S.C. § 1981 Encompasses Retaliation Claims

In CBOCS West, Inc. v. Humphries, (— S.Ct. —, 2008 WL 2167860, U.S., May 27, 2008), the United States Supreme Court considered whether 42 U.S.C. § 1981 encompasses retaliation claims. The Supreme Court held that it does.


Hedrick G. Humphries (“Humphries”) worked as an assistant manager of a Cracker Barrel Restaurant, which is owned by CBOCS, West, Inc. (“CBOCS”). Humphries, who is a black man, claims that CBOCS dismissed him because of racial bias and also because he complained to his managers that another assistant manager had dismissed a black employee for race-based reasons. Humphries filed a timely charge with the Equal Employment Opportunity Commission and received a right to sue letter.

Humphries filed a lawsuit in federal district court alleging that CBOCS violated Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court dismissed Humphries’ Title VII claims because he failed to timely pay the necessary filing fees. The court granted summary judgment in favor of CBOCS on Humphries § 1981 claims. The United States Court of Appeals upheld the dismissal of Humphries claim for direct discrimination but ruled in his favor on the § 1981 retaliation claim and remanded the matter back for a trial on the retaliation claim. CBOCS sought review by the United States Supreme Court.

Supreme Court Decision

The United States Supreme Court considered whether 42 U.S.C. § 1981 "encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related ‘right.’” The Court concluded that it does.

Title 42 U.S.C. § 1981(a), was enacted just after the Civil War and provides, “[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.” In 1969, in the case of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, the Court analyzed 42 U.S.C. § 1982 which is similar to § 1981 except it relates to the right to “inherit, purchase, lease, sell, hold, and convey real and personal property.” The Court concluded that a white owner who had leased his house to a black man had standing to maintain an action against the housing association that refused to approve the owner’s assignment of his rights to the lessee because of the lessee’s race. The Supreme Court found that the Sullivan case “stands for the proposition that § 1982 encompasses retaliation claims.” Sections 1981 and 1982 have long been construed similarly by the courts.

However, in 1989, the Supreme Court significantly limited the scope of § 1981 in its decision in Patterson v. McLean Credit Union, 491 U.S. 164. The Court interpreted § 1981’s phrase “to make and enforce contracts” narrowly and found that this phrase “did not apply to ‘conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory conditions.’” Because victims of retaliation in the workplace “will often have opposed discriminatory conduct taking place after the formation of the employment contract,” the Court’s decision in Patterson appeared to foreclose on retaliation claims.

After the Patterson decision was handed down, Congress passed the Civil Rights Act of 1991, which added subsection(b) to § 1981. Section 1981(b), states that “the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” After the enactment of the Civil Rights Act of 1991, “Federal Courts of Appeals again reached a broad consensus that § 1981, as amended, encompasses retaliation claims.”

The Supreme Court concluded that “the view that § 1981 encompasses retaliation claims is indeed well embedded in the law.” The Court affirmed the decision of the Court of Appeals which held that Humphries should be allowed to proceed to trial with his claim of retaliation under § 1981.