U.S. Supreme Court Holds Employee can Bring Suit for Retaliation under Section 1981

Federal civil rights are useless if they cannot be enforced. Recently, in CBOCS West, Inc. v. Humphries, most of the Supreme Court agreed ruling that employees could bring retaliation claims against their employers under The Civil Rights Act of 1866, 42 U.S.C § 1981 (“Section 1981”). What brings controversy to this decision is that the text of Section 1981 does not state that it includes claims of retaliation for employee complaints of race discrimination.


Section 1981 provides in pertinent part that “[a]ll persons within the jurisdiction of the United States shall have the same right to make and enforce contracts . . . as is enjoyed by white citizens.” The section does not contain an express anti-retaliation provision, protecting individuals from acts of reprisal for complaining about race discrimination.
Hendrick Humphries, an African American man, was employed as an associate manager at a Cracker Barrel restaurant owned by CBOCS. Humphries brought suit against CBOCS claiming that he was fired from his position after complaining to his managers about racial discrimination and an incident where another associate manager fired an African American waitress because of her race. Humphries filed claims under both Title VII of the Civil Rights Act of 1964 and § 1981. His claim under Title VII, which does recognize retaliation claims, was dismissed for failure to timely pay filing fees. Consequently, requiring the lower court to decide whether his retaliation claim had merit under §1981.
In finding that Section 1981 does encompass retaliation claims, the Supreme Court’s decision was not based on language used in the statute. Instead, the court based its decision heavily on the principle of stare decisis. The Court looked at its decisions in Sullivan v. little Hunting Park and Jackson v. Birmingham Board of Education which construed Section 1982 as prohibiting retaliation. Noting that both sections 1982 and 1981 were enacted together and were directed to the same concern, the Court felt compelled to give the two textually similar provisions the same construction. Although the rationale might not be supported by the plain language of the statute, the conclusion itself should not come as a surprise – an employer cannot retaliate against employees who seek to assert their civil rights.
Jessica F. Nelson, a summer associate at Gangemi Law Firm, P.C., assisted in the preparation of this blog.