Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The U.S. Supreme Court today, in CBOCS West Inc. v. Humphries, ruled 7-2 that the Civil Rights Act of 1866 -- now codified at 42 U.S.C. 1981, prohibits retaliation against an individual who complains of discrimination against others, when contracting rights are at stake.  It is an issue that often arises in workplace situations, but potentially reaches much more widely, as the ScotusWiki has noted on its site.

For background, see the ScotusWiki.  I also discussed the case back in February at a post here.  You can download the decision directly from the court here.

For now, the court's holding -- which relies primarily on the idea of stare decisis (or, in essence, we've already decided this in other cases so we're just going to apply it here) -- is found in this quote from Justice Breyer:

We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of  related cases where we interpret §§1981 and 1982 similarly.  CBOCS’ arguments do not convince us to the contrary.  We consequently hold that 42 U. S. C. §1981 encompasses claims of retaliation.

Justice Thomas writes a lengthy dissent with Justice Scalia joining saying, in essence, that the Court hasn't ruled on this before and therefore stare decisis is not applicable:

By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it  created remedies out of whole cloth to effectuate its vision of congressional purpose.” Ibid. That the Court does so under the guise of stare decisis does not make its decision any more justifiable. Because the text of §1981 provides no basis for implying a private right of action for retaliation, and because no decision of this Court holds to the contrary, I would reverse the judgment below.

For Connecticut employers, the decision is interesting, but because state law already prohibits retaliation on the basis of race (and allows for the recovery of significant damages), it may not have a significant impact on cases here.  Nevertheless, it provides another type of claim that employees may consider when filing suit -- and other claim that employers will need to concern themselves about.

I'll update this post further with some additional feedback and analysis as warranted (and as time permits).

• Email This
• Print
• Comments
• Trackbacks (1)

As with other U.S. Supreme Court cases this term, there's been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of  when it is illegal for an employer to retaliate against an employee for complaining about discrimination.  For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.

I'll leave it to others, such as Ross's Employment Law Blog to explain the cases. 

• In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint.  ADEA already prohibits retaliation by private employers.  Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
• In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts...") provides a cause of action for retaliation as well.   However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims. 

Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case."  Unless the decision's rationale is broad, that seems to be an overstatement at this point.  Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981.  Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations.  Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline.  Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.

Jon Hyman, at Ohio Employer's Law Blog, has some additional thoughts on the Humphries case as does Workplace Prof.  A decision on these cases is expected by June 2008.

For employers in Connecticut, I would ignore the hype about these cases.  Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4).  Regardless of how the Supreme Court decides, state law will continue to apply.  If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don't worry about whether federal or state law will ultimately apply. 

• Email This
• Print
• Comments
• Trackbacks (2)