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Supreme Court Considers Whether to Allow Retaliation Claims Brought Under 19th Century Civil Rights Act

The Supreme Court heard oral arguments February 20 from an employer seeking to overturn the vast majority of federal appellate court rulings that a post Civil War-era civil rights statute prohibiting race discrimination allows claims for retaliation, even though the statute is silent on the question. Several Justices appeared concerned about the lack of any provision authorizing such claims. CBOCS West, Inc. v. Humphries, No. 06-1431.

Many civil rights statutes explicitly protect employees from an employer's retaliation for complaints about discrimination. Title VII provides such retaliation protection for employees who complain about race, sex, religious and national origin discrimination. Title VII plaintiffs must file a charge of discrimination within a time period less than one year following the alleged discrimination (300 or 180 days, depending on the state).

Section 1981, derived from the Civil Rights Act of 1866, protects employees from race discrimination. Unlike Title VII, Section 1981 plaintiffs generally have a number of years to file a lawsuit challenging discriminatory conduct. Section 1981 does not contain explicit language authorizing retaliation claims. However, since Congress enacted the Civil Rights Act of 1991, and expanded the coverage of Section 1981, most federal courts have interpreted Section 1981 to allow such claims. In addition to the time-filing advantage, Section 1981 allows for unlimited damages, whereas Title VII imposes punitive and compensatory damages caps, depending on the size of the employer.

At the Supreme Court arguments, Humphries's employer, CBOCS West, Inc., argued that the lack of explicit language bars employees from bringing retaliation claims. CBOCS West also argued that reading a retaliation cause of action into Section 1981 would allow race discrimination plaintiffs to evade Title VII's shorter time-filing requirements.

Chief Justice Roberts and Justice Kennedy asked pointed questions of the employee's counsel, indicating their concern with the lack of explicit language in Section 1981 authorizing a claim for retaliation. This has caused some observers to speculate that the Court will reverse the trend of allowing Section 1981 retaliation claims. A ruling from the Court is expected later this spring.

According to EEOC statistics, retaliation claims brought under employment discrimination laws have risen considerably over the last several years. Jackson Lewis attorneys are available to assist employers in preventing or addressing the unique challenges of retaliation claims.