On May 27^th, the U.S. Supreme Court expanded the ability of employees to sue for retaliation.  The Court held that a federal statute enacted shortly after the Civil War granting all citizens the right to enter into and enforce contracts (commonly referred to as "Section 1981") can be used to bring a claim of employment-related retaliation.  The case referenced here is CBOCS West, Inc. v. Humphries, No. 06-1431, U.S. Supreme Court (May 27, 2008).

Hedrick Humphries, an African American assistant manager at a Cracker Barrel in Illinois, alleged that he was fired based on his race and because he complained to managers that an African American co-worker was also dismissed for race-based reasons.  Humphries sued Cracker Barrel under both Title VII of the Civil Rights Act of 1964 and Section 1981.  The trial judge granted summary judgment to Cracker Barrel on all of his claims.

The Seventh Circuit Court of Appeals generally agreed with the trial judge, with one exception.  The appellate court held that Humphries should be allowed to proceed with his claim that he was unlawfully retaliated against in violation of Section 1981 for complaining about the alleged discriminatory treatment of a co-worker.  Cracker Barrel turned to the Supreme Court, arguing that Section 1981 prohibits only discrimination, not retaliation.

In a 7-2 ruling, the U.S. Supreme Court agreed with the Seventh Circuit, thereby allowing retaliation claims to be brought under Section 1981.  In reaching this conclusion, the Supreme Court relied upon four points:

1.       Section 1982, a Civil War era law which protects rights in the purchase of real property, had previously been found by the Court to prohibit retaliation.  

2.       Section 1981 and Section 1982 have consistently been interpreted alike. 

3.       In 1991 Congress passed legislation reversing an earlier Supreme Court decision and specifically declaring that post-contract formation conduct, including retaliation, should be prohibited under Section 1981. 

4.     Since the law was revised in 1991 the lower courts have consistently found that Section 1981 prohibits retaliation.

A strongly worded dissent written by Justice Clarence Thomas and Justice Antonin Scalia, concluded that the statute does not state that it prohibits retaliation and when Congress revised the law it didn't include a provision barring such.  According to Justice Thomas: "Retaliation is not discrimination based on race.  When an individual is subject to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct."  Therefore, the dissent found, the Court should not imply a claim for retaliation into a statute that exclusively prohibits discrimination.

The Supreme Court’s decision means we're probably going to see more race discrimination and race-based retaliation cases.  Also, more of these will be brought under Section 1981, rather than Title VII.  Section 1981 provides several benefits to the plaintiff, including:

• a significantly longer statute of limitations
• no administrative remedies to satisfy
• no damages caps as under Title VII. 
  
  It will be interesting to see how this ruling unfolds in future court decisions.