U.S. Supreme Court Opens Door for Retaliation Claims Under Section 1981
The U.S. Supreme Court recently opened another avenue for retaliation claims when it held that Section 1981 of the Civil Rights Act of 1866 prohibits retaliation against employees who complain of race discrimination. Although Title VII of the Civil Rights Act of 1964 has long prohibited such retaliation, the Supreme Court's decision would allow individuals to bypass Title VII's strict time limits for filing a charge with the Equal Employment Opportunity Commission (EEOC) when asserting retaliation claims based on race.
Hedrick Humphries, a black assistant restaurant manager for Cracker Barrel, alleged he was fired because of his race and in retaliation for complaints to management about race discrimination against a black coworker. He filed lawsuits under both Title VII and Section 1981, but the trial court dismissed his Title VII claims because he failed to pay filing fees in a timely manner. Cracker Barrel asked the court to dismiss the remaining Section 1981 discrimination and retaliation claims, which it did, and Humphries appealed to the Seventh U.S. Circuit Court of Appeals.
Looking at Humphries' Section 1981 claims, the Seventh Circuit found that he had failed to provide sufficient evidence to support his race discrimination claim but that the trial court had incorrectly dismissed his retaliation claim. Cracker Barrel sought review in the U.S. Supreme Court to determine whether Section 1981 encompasses retaliation claims.
Supreme Court's decision
On May 27, the U.S. Supreme Court held that employees may pursue retaliation claims under Section 1981. In a 7-2 decision, the justices decided that even though Section 1981 grants equal rights under the law, it doesn't expressly prohibit retaliation; such a prohibition is implied.
The Court relied on previous Supreme Court rulings that recognized the implied right to sue for retaliation under Section 1982 of the Civil Rights Act of 1866 and Title IX of the Education Amendments of 1972. The Court noted that its previous decisions showed that the lack of an express provision prohibiting retaliation isn't fatal to the existence of an implied retaliation claim. It further relied on congressional reports on the Civil Rights Act of 1991, which the Court stated indicated the legislators' intent to provide a private claim for retaliation under Section 1981.
Effect on employers
At first glance, this decision may appear to turn on a technicality. Many of you are already aware that Title VII prohibits retaliation. Why then should "extra" protection afforded an employee via Section 1981 be of any interest? Although numerous federal courts have previously allowed retaliation claims under Section 1981, this decision may result in more Section 1981 retaliation claims. As readers of Kentucky Employment Law Letter know, retaliation claims have been and continue to be on the rise.
The extended statute of limitations and uncapped damages available under Section 1981 may provide an incentive for individuals to plead their claims under Section 1981 rather than Title VII. Those same factors may also make it more difficult to resolve some cases because of the prolonged period of time between an incident and the time an employee files suit.
Furthermore, the Court's decision may encourage individuals to bypass the EEOC's administrative process provided by Title VII. Many employees already do that when filing claims under the Kentucky Civil Rights Act. An EEOC charge often acts as an early warning sign for employers, but if an employee elects to proceed only under Section 1981, an EEOC charge isn't required. CBOCS West, Inc. v. Humphries, 2008 U.S. LEXIS 4516 (2008).
Unfortunately, the Supreme Court's decision provides another avenue of recovery that you need to be concerned about. You may recall the Court's 2006 decision in theBurlington Northern & Santa Fe Railway Co. v. White case, which expanded the scope of retaliation claims by allowing claims for retaliatory harassment. This most recent decision builds on the expanding spectrum of options for litigious employees by providing an alternative statute under which retaliation claims may be filed. You should be mindful of these retaliation decisions when dealing with employees who have complained of discrimination.
If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. Find us online atwww.gdm.com.
Copyright 2008 M. Lee Smith Publishers LLC
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.