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In what may be an ominous sign for employees, the Supreme Court recently agreed to review whether 42 U.S.C. �1981 protects against retaliation. The Court’s decision in CBOCS West Inc. v. Humphries could have a dramatic impact because Section 1981 is a critical means of protection for those who suffer racial discrimination. In Humphries, the plaintiff, an African-American associate manager at a Cracker Barrel restaurant, complained to a district manager about a supervisor’s racial discrimination. CBOCS, the company that owns Cracker Barrel restaurants, fired Humphries shortly after his complaints. The district court granted summary judgment, finding that he had failed to raise sufficient evidence for either his discrimination or his retaliation claims. The U.S. Court of Appeals for the 7th Circuit reversed on the retaliation claim and, clarifying some previous circuit precedent, explicitly held that employees could pursue such claims under Section 1981. Section 1981 states that all individuals, regardless of race, shall have equal rights to “make and enforce contracts.” It is well established that this includes private contracts such as those inherent in employment. The sparse language of Section 1981, however, does not explicitly prohibit retaliation for complaining about racial discrimination regarding those contracts, creating some ambiguity over whether retaliation is covered. APPARENT UNANIMITY In the Civil Rights Act of 1991, Congress amended Section 1981 to clarify 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.” The House Committee Report confirms that Congress intended retaliation to be included. Since this amendment, most courts have also found that “modification” and “termination” of the employment contract logically encompass discrimination through retaliation. Since 1991, all eight circuits to have considered the issue have held that retaliation claims are cognizable under Section 1981. In Aleman v. Chugach Support Services (2007), for example, the typically conservative 4th Circuit held retaliation to be “a form of differential treatment subsumed in the anti-discrimination language of Section 1981.” Moreover, the Supreme Court, in Sullivan v. Little Hunting Park Inc. (1969), held that plaintiffs could bring retaliation claims under Section 1982, the companion provision to Section 1981 that deals with housing discrimination. Although the word “retaliation” similarly does not appear in Section 1982, the Court interpreted its general prohibition to cover retaliation against those who speak up for those protected by the prohibition. Although CBOCS’s petition for certiorari in Humphries indicates that the 7th and 11th circuits have waffled over Section 1981 retaliation claims, a review of those cases suggests otherwise. In Little v. United Technologies (11th Cir. 1997), a white employee asserted retaliation after he complained about an anti-black remark, and in Hart v. Transit Management of Racine (7th Cir. 2005), a white employee claimed that he suffered retaliation after supporting a black co-worker’s discrimination charge. The analysis in Little and Hart was limited to the narrow issue of whether a person could assert claims of retaliation for complaining about discrimination against others. As the 7th Circuit recognized in Humphries, neither Little or Hart means that Section 1981 retaliation claims could not be brought at all. To the extent that there was any remaining confusion, however, the 7th Circuit expressly indicated in Humphries that it was overruling Hart and that retaliation claims under Section 1981 were fully viable. A DEVASTATING IMPACT Given this apparent unanimity in the circuits, it is difficult to understand why the Supreme Court accepted cert. Plaintiffs attorneys are concerned that the current conservative tilt of the Court might lead to a 5-4 decision invalidating Section 1981 retaliation claims. If this happens, it would have a devastating impact on employees’ rights. As the Court recognized in Burlington Northern and Santa Fe Railroad Co. v. White (2006), a retaliation case under Title VII of the Civil Rights Act of 1964, workplace discrimination laws depend on the cooperation of employees: “Plainly, effective enforcement [can] only be expected if employees [feel] free to approach officials with their grievances.” Invalidating retaliation claims would thus eviscerate the protections of Section 1981. Although many plaintiffs could still bring a retaliation claim under certain state laws or under Title VII � which expressly prohibits retaliation against employees who complain about discrimination on the basis of race or color � the remedies of those other statutes are generally not as broad as those under Section 1981. Unlike Title VII, Section 1981 does not require a plaintiff to first exhaust administrative remedies with the Equal Employment Opportunity Commission; allows a plaintiff to name, in addition to the corporation, individual defendants in their personal capacities; and is not subject to strict caps on compensatory and punitive damages. Moreover, while Title VII charges must be filed with the EEOC within 180 days (or 300 days, if the charge is also covered by a state agency), the Supreme Court held in Jones v. R.R. Donnelley & Sons Co. (2004) that the vast majority of Section 1981 claims have a statute of limitations of four years. This longer time period is often necessary. It may not be immediately apparent that an employee has been discriminated against. A terminated employee may be more focused on finding a new job and making ends meet than on filing a retaliation claim. And as employers should note, the longer statute of limitations also allows more time for negotiating a resolution without formal legal action. A CHILLING EFFECT Because Section 1981 is, in many ways, a more powerful statute for employees to contest racial discrimination, invalidating Section 1981 retaliation claims would significantly undermine workers’ rights. Furthermore, fewer employees who had suffered retaliation for complaining about racial discrimination would seek to vindicate their rights in court if they had to proceed under Title VII with the cumbersome EEOC process, shorter statutes of limitations, and low damages caps. Although CBOCS suggested in its cert petition that the occasional overlap between Title VII and Section 1981 makes for bad policy, the legislative history of both Title VII and the Civil Rights Act of 1991 reveals that Congress meant the two statutes to be complementary, not mutually exclusive. And if there is a further policy decision to be made here, that falls to Congress, not the Supreme Court. Perhaps plaintiffs attorneys do have some cause for optimism, though. After the Court accepted cert in Burlington Northern, most pundits predicted that it would weaken Title VII retaliation claims. Instead, the Court � with newly confirmed Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. � surprised nearly everyone by issuing a unanimous decision in favor of the plaintiff and taking an expansive view of retaliation claims under Title VII. Effective enforcement of Section 1981 will depend upon a similar ruling in Humphries.
Avi Kumin is a partner in Washington, D.C.’s Katz, Marshall & Banks, which represents plaintiffs in employment and civil rights matters.

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