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 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).